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Martinez v. Wachovia Mortgage

March 10, 2010

TONY AND YVONNE MARTINEZ, PLAINTIFFS,
v.
WACHOVIA MORTGAGE, FSB, WORLD SAVINGS BANK, INC., WORLD SAVINGS BANK FSB AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING PLAINTIFFS' MOTION FOR AN ORDER ISSUING A PRELIMINARY INJUNCTION

Plaintiffs move for a preliminary injunction ("motion") in which they seek to prevent Defendants from conducting a "trustee's sale on [their] home," "now scheduled for March 15, 2010." (Not of Mot. 1). "Defendant Wachovia Mortgage ("Wachovia"), a division of Wells Fargo Bank, N.A., formerly known as Wachovia Mortgage FSB, which was formerly known as World Savings Bank, FSB," represents all Defendants in this case and opposes the motion. Wachovia extended the date for the trustee sale to March 15, 2010, to provide Plaintiffs with time to file the motion. (Mot. 9:1-2). The motion was heard on March 8, 2010. For the reasons stated below, Plaintiffs' motion is DENIED.

I. BACKGROUND

At oral argument on the motion, Plaintiffs clarified that the only basis on which they seek to prevent Defendants from conducting a trustee's sale on their home is the rescission claim in their complaint, alleged under the Truth In Lending Act ("TILA"). Plaintiffs argue they are entitled to rescind their loan because "[t]he Truth and Lending Disclosure [("TILD")] provided indicated a payment of $2306.57 at 7.2% interest," which would be applied to both principal and interest," yet Plaintiffs' initial $2,306.57 monthly payment "figure is actually based on an interest of 2.75% which is not "true or accurate" since "a payment at the rate of 7.2% . . . would [have been a] larger figure." (Yvonne Martinez Decl. ¶¶ 4,5 Ex. 2 to Mot; Mot. 7:10-14.)

Plaintiffs argue because of this failure to disclose that Plaintiffs' initial $2,306.57 monthly payment "figure is actually based on an interest of 2.75% rather than "a payment at the rate of 7.2%, they are entitled to a three year period within which to rescind the loan under 15 U.S.C. § 1635(a) and (f). (Mot. 14:14-24). Plaintiffs assert that Exhibit 3 attached to their motion is their rescission letter dated April 21, 2009, which they sent to Wachovia. (Id. 15:19-27, Yvonne Martinez Decl. ¶ 6, Martinez Ex. 3). Plaintiffs argue because of the April 21 rescission letter, Wachovia's security interest in Plaintiff's residence became null and void and therefore the trustee's sale cannot proceed. (Id.)

II. LEGAL STANDARD

"A plaintiff seeking a preliminary injunction 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 Ass'n v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting and citing Winter v. Natural Resources Defense Council, 129 S.Ct. 365, 374 (2008)).

Plaintiffs request that judicial notice be taken of four "articles concerning the World Savings Pick a Payment Loan," which show the various options available under the payment plans. (Request for Judicial Notice 1-2). Plaintiffs argue "the first option, most commonly selected by borrowers under this scheme, involves paying less than the interest being accumulated, typically 125 percent of the initial loan balance[,]" which "'recast[s]' [the loan] to reflect full amortization of the loan for its remaining term" and "causes a huge increase in the required monthly payments . . . ." (Mot. 8:11-21).

Defendants object to this judicial notice request, arguing that the request does not seek to have "the [C]court take notice of any particular 'adjudicative facts,' so the request should be denied on that ground alone." (Defs.' Obj. 1:26-28). Defendants also argue that in the first article, the "CBS News Article[,]" "the fact . . . that there is a sharp increase in residential foreclosures in California" does "not have any bearing on this particular lawsuit," and "[e]verything else in the article is either irrelevant or else neither a generally known fact nor one that would be capable of determination by resort to any source whose accuracy could not be reasonably questioned." (Id. 2:2-8). Further, Wachovia objects to judicial notice being taken of the "Mandrigues lawsuit," discussed in the second and third articles, and of the "Paul Bishop" lawsuit, discussed in fourth article, arguing these lawsuits have been "hotly" and "vigorously contested" and "nothing has been proven one way or another." (Id. 2:9-20).

Wachovia also requests that judicial notice be taken of two printouts from the California Department of Real Estate's website showing that both Plaintiffs are licensed California real estate brokers. Plaintiffs did not object to this request.

Facts properly subject to judicial notice are those that are "not subject to reasonable dispute in that [they are] either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201(b).

Plaintiffs' request that judicial notice be taken of the four articles is denied since the articles are not from "sources whose accuracy cannot reasonably be questioned." FED.R.EVID. 201. Wachovia's request that judicial notice be taken of the website print outs concerning each Plaintiffs' real estate broker licenses is granted. The information in these printouts is not disputed and is "capable of determination" since it is from the California Department of Real Estate website, a "source[] whose accuracy cannot reasonably be questioned." New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 702 n. 22 (10th Cir. 2009)(taking judicial notice of data on web sites of government agencies).

III. ANALYSIS

A. Likelihood of Success on ...


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