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Loesel v. Cooper National Default Servicing Corporation Premier Mortgage Services of Washington HSBC Bank

United States District Court, D. Nevada

October 17, 2019

DAVID LOESEL, Plaintiff,




         Before the Court are Plaintiff David Loesel's (“Plaintiff”) Motion for a Temporary Restraining Order (ECF No. 4), Plaintiff's Motion for a Preliminary Injunction (ECF No. 5), and Defendants Cooper, HSBC Bank USA National Association, Mortgage Electronic Registration Systems's (“Defendants”) Motion to Dismiss (ECF No. 7). For the following reasons, the Court grants Defendants' motion and denies the other motions.


         Plaintiff David Loesel filed his complaint in this matter on August 19, 2019, with the following causes of action asserted against Defendants: 1) lack of standing to foreclose; 2) fraud in the concealment; 3) fraud in the inducement; 4) intentional infliction of emotional distress; 5) quiet title; 6) slander of title; 7) declaratory relief; 8) violations of TILA/HOEPA (Truth in Lending Act, 15 U.S.C. §§ 1601 - 1667f); 9) Violations of REPSA (Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 - 2617); and 10) rescission. ECF No.1 On September 3, 2019, Defendants Cooper, HSBC Bank USA National Association, and Mortgage Electronic Registration Systems (“Defendants”) moved to dismiss the complaint. ECF No. 7. Defendants also filed a response in opposition to Plaintiff's Motions for a Temporary Restraining Order and Preliminary Injunction on that same date. ECF No. 8. Plaintiff filed an opposition on September 18, 2019. ECF No. 12. Defendants replied on September 24, 2019. ECF No. 13. Plaintiff filed a notice of lis pendens on October 1, 2019.


         Plaintiff alleges the following: On or around October 31, 2006, Plaintiff, a disabled military veteran, purchased property located at 3305 Perching Bird Lane, North Las Vegas, Nevada 89084 (“Subject Property”). Plaintiff purchased this property through a loan with non-party MORTGAGEIT. The note was secured by a First Mortgage/Trust Deed on the Property in favor of MORTGAGEIT. The original beneficiary and nominee under the Mortgage/Deed of Trust was MERS. A Notice of Default was filed on the property on October 8, 2018 and now Defendants (Plaintiff does not specify which defendant in his complaint) wish to foreclose on the property. Plaintiff maintains that his loan was not properly assigned and/or transferred to Defendants in accordance with the Pooling and Servicing Agreement (“PSA”) to which his loan was subject after it was securitized and transferred to a Real Estate Mortgage Investment Conduit (“REMIC”) Trust, which Plaintiff alleges requires that there be a complete and unbroken chain of transfers/ assignments. Plaintiff also alleges that there is a pending case in the Eighth Judicial District Court appealing an eviction order with the Las Vegas Justice Court. There is also a pending foreclosure sale, the date of which Plaintiff does not specify in his complaint. Plaintiff now seeks a temporary restraining order, preliminary injunction, and permanent injunction to enjoin any foreclosure proceedings and a declaration by this Court that any sale of the Subject Property is unlawful.


         a. Motion to Dismiss

         In order to state a claim upon which relief can be granted, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In ruling on a motion to dismiss for failure to state a claim, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Security Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). To survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” meaning that the court can reasonably infer “that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). A pro se complaint “ however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         b. Temporary Restraining Orders and Preliminary Injunctions

         A temporary restraining order (TRO) may be issued without notice to the adverse party only if the moving party: (1) provides a sworn statement clearly demonstrating “that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition, ” and (2) sets forth the efforts made to notify the opposing party and why notice should not be required. Fed.R.Civ.P. 65(b)(1). TROs issued without notice “are no doubt necessary in certain circumstances, but under federal law they should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.” Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) (quoting Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 439 (1974)).

         The analysis for a temporary restraining order is “substantially identical” to that of a preliminary injunction. Stuhlbarg Intern. Sales Co, Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).

         A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc.,555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must establish four elements: “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that the public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014) (citing Winter, 555 U.S. 7, 20 (2008)). A preliminary injunction may also issue under the “serious questions” test. Alliance for the Wild Rockies v. Cottrell,632 F.3d 1127, 1134 (9th Cir. 2011) (affirming the continued viability of this doctrine post-Winter). According to this test, a plaintiff can obtain a preliminary ...

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