1:09-ap-01171•Kamins et al v. One West Bank, FSB, successor in interest to Indy
Kamins et al v. One West Bank, FSB, successor in interest to Indy
1:09-ap-01171Canb12 dic 2009
Testo completo
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA In re CHARLES and TERESA KAMINS, No. 09-11602 Debtor(s). ______________________________________/ CHARLES and TERESA KAMINS, Plaintiff(s), v. A.P. No. 09-1171 ONE WEST BANK FSB, Defendant(s). _______________________________________/ Memorandum on Motion for Preliminary Injunction _________________ The debtors’ property at 358 St. Andrews Drive, Napa, California, is on the verge of foreclosure by defendant OneWest Bank, FSB. The debtors attempted to oppose the Bank’s stay relief motion on the grounds that its foreclosure proceedings were defective. The court granted the motion, holding that it is improper to litigate such matters in a stay relief motion and that the Bank had a colorable claim. The motion was granted without prejudice to an adversary proceeding. That adversary proceeding has been filed; the debtors’ request for a preliminary injunction is now before the court. The debtors make two arguments: that the notice of default was defective because the bank or its predecessor in interest was not then the owner of the note secured by the property, and that the Entered on Docket December 14, 2009 GLORIA L. FRANKLIN, CLERK U.S BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA Case: 09-01171 Doc# 13 Filed: 12/12/09 Entered: 12/14/09 08:23:04 Page 1 of 2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 foreclosure is invalid because the debtors were not contacted prior to the recording of the notice of default as required by Civil Code Section 2923.5(b). There is almost enough information before the court to resolve this case summarily, at least as to the first issue, but summary judgment is not appropriate at this time. The merits of the case are relevant only in making a determination of the likelihood of success. The debtors are unlikely to prevail on their ownership of the note claim, as the Bank is probably correct in arguing that it is the power of sale which effects the foreclosure, not the notice of default. However, the debtors are likely to prevail if they can prove that they were never contacted as required by Civil Code Section 2923.5(b). That is completely a question of fact which is in total dispute. Given the state of real property values, the hardship to the Bank is slight if its foreclosure is delayed for a brief period of time, whereas the debtors will lose the property if the status quo is not maintained. It is certainly not in the public interest to have an other foreclosed property on the market. Accordingly, a brief preliminary injunction is in order. For the above reasons, a preliminary injunction will issue maintaining the status quo so long as the debtors maintain and insure the property and pay the property tax bill which was due December 10. However, the injunction will last only until April 1, 2010. The court will accommodate the debtors by shortening time as necessary to expedite trial, and will make an early trial date available, but it is the debtors’ responsibility to bring the case to trial by that date. The equities will not support extension of a preliminary injunction beyond April 1. Counsel for the debtors shall submit a form of preliminary injunction which counsel for the Bank has approved as conforming to this decision. Dated: December 12, 2009 SAlan Jaroslovsky U.S. Bankruptcy Judge Case: 09-01171 Doc# 13 Filed: 12/12/09 Entered: 12/14/09 08:23:04 Page 2 of 2
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