Case 8:14-cv-01068-CJC-DFM Document 10 Filed 07/11/14 Page 1 of 2 Page ID #:76

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES GENERAL
Case No. SACV 14-01068-CJC(DFMx)

Date: July 11, 2014

Title: SHERI MOODY V. CAPITAL ONE, N.A.

PRESENT:
HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
Michelle Urie
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:

None Present

N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:

None Present

PROCEEDINGS: (IN CHAMBERS) ORDER DENYING PLAINTIFFS EX

PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND
ORDER TO SHOW CAUSE [filed 7/10/14]
On July 10, 2014, Plaintiff Sheri Moody (Plaintiff) filed an ex parte application
for a temporary restraining order (TRO) enjoining Defendant Capital One, N.A.
(Capital One) from proceeding with a foreclosure sale of the property located at 6192
Bannock Road, Westminster, CA 92683, scheduled for July 14, 2014. (Dkt. No. 3
[Appl.].) Plaintiff also requests an order requiring Capital One to show cause why a
preliminary injunction should not issue (OSC). Plaintiff concurrently filed a civil
action in this Court to enjoin the foreclosure. Because Plaintiff has not demonstrated a
likelihood of success on the merits of her claims, her ex parte application is DENIED.
A TRO is an extraordinary and drastic remedy that may only be awarded upon a
clear showing that the moving party is entitled to relief. See Mazurek v. Armstrong, 520
U.S. 968, 972 (1997). A plaintiff seeking a [TRO] must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
the public interest. Am. Trucking Assns, Inc. v. City of Los Angeles, 559 F.3d 1046,
1052 (9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365,
374 (2008)).
As an initial matter, Plaintiff has shown no justification for waiting to file this

Case 8:14-cv-01068-CJC-DFM Document 10 Filed 07/11/14 Page 2 of 2 Page ID #:77

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES GENERAL
Case No. SACV 14-01068-CJC(DFMx)

Date: July 11, 2014

Page 2

TRO until there was only one business day left before the foreclosure sale. In fact,
Plaintiff alleges that she retained an attorney as far back as December 2013 to address her
dispute with Capital One. (Dkt. No. 1 [Compl.] 33.) Plaintiff has been aware of the
date of the foreclosure sale since at the very latest the date she received the Notice
of Trustees Sale recorded on June 12, 2014. (See Appl., Exh. 2.) Plaintiff has provided
no reason why she waited until the eleventh hour before seeking the relief to which she
contends she is entitled.
The TRO must be denied because Plaintiff has not shown that she is likely to
succeed on the merits in her suit to set aside the foreclosure sale. As a threshold issue,
Plaintiff has not given any indication that she is able to comply with the tender rule.
Under California law, the tender rule requires that as a precondition to . . . any cause of
action implicitly integrated to the [foreclosure] sale, the borrower must make a valid and
viable tender of payment of the secured debt. Montoya v. Countrywide Bank, F.S.B.,
No. CV 09-00641, 2009 WL 1813973, at *11 (N.D. Cal. June 25, 2009); accord Karlsen
v. Am. Sav. & Loan Assn, 15 Cal. App. 3d 112, 117 (1971); Arnolds Mgmt. Corp. v.
Eischen, 158 Cal. App. 3d 575, 578 (1984). Plaintiff has made no suggestion that she has
tendered or could tender the outstanding amount due on the defaulted loan. In addition,
Plaintiffs claim for violation of the Garn-St. Germain Depository Institutions Regulatory
Act has no likelihood of success based on the facts Plaintiff herself alleges. Plaintiff
claims that the Garn-St. Germain Act, codified at 12 U.S.C. 1701k-3, proscribes dueon-sale clauses, and that Capital One impliedly or expressly enforced the due-on-sale
clause against Plaintiff by setting a trustees sale after she completed an interspousal
transfer of the property on June 19, 2014. Among other reasons, this claim fails for the
simple fact that Capital One recorded the Notice of Trustees Sale on June 12, 2014, six
days before the interspousal transfer was completed. (See Appl., Exh. 2.) This could not
have constituted an implied enforcement of a due-on-sale clause. Plaintiff has not shown
a likelihood of success on this or any of her claims.
For the foregoing reasons, Plaintiffs ex parte application for a TRO and OSC is
DENIED.
bsc
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