Editor: David Reiss
Brooklyn Law School

January 31, 2013

United States District Court in California Denies Plaintiff’s Motion for Temporary Injunctive Relief, Allowing Non-Judicial Foreclosure

By Robert Huberman

In Chilton v. Fed. Nat. Mortg. Ass’n, 1:09-CV-02187 OWW SM, 2009 WL 5197869 (E.D. Cal. Dec. 23, 2009), the United States District Court, in the Eastern District of California denied Chilton’s motion for temporary injunctive relief. Chilton filed a complaint alleging that Federal National Mortgage Association (Fannie Mae) violated provisions within U.S.C. Title 15, regarding Commerce and Trade, and/or U.S.C. Title 18, regarding Crimes and Criminal Procedure, because Fannie Mae initiated a non-judicial foreclosure on her property without a genuine original note. Chilton then filed an order to show cause and motion for temporary restraining order, in an attempt to block the foreclosure process. The Court noted that in order to obtain temporary injunctive relief, Chilton must demonstrate a likelihood of success on the merits.

The Court rejected Chilton’s legal theory holding that non-judicial foreclosures can be commenced without producing an original promissory note. The Court noted that under California Civil Code § 2924, et seq. Section 2924(a)(1), regarding Mortgages in General, a trustee, mortgagee, beneficiary or any of their authorized agents may conduct a foreclosure. In addition, the party initiating the foreclosure need not be in possession of the original note. Consequently, the Court held that Chilton was unlikely to succeed on her claim for relief, and thus found it unnecessary to set Chilton’s motion for temporary injunctive relief for a hearing.

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