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Chandra M. Beliso v. Wells Fargo Bank

December 9, 2010

CHANDRA M. BELISO, PLAINTIFF,
v.
WELLS FARGO BANK, N.A. DBA AS AMERICA'S SERVICING COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff's application for temporary restraining order. Defendants have filed responses. Also pending are defendant T.D. Service Company's motion to dismiss, and defendant Wells Fargo Bank's motion to dismiss, or for more definite statement.*fn1

For the reasons set forth herein, plaintiff's application should be denied, and defendants' motions should be granted.

BACKGROUND

Plaintiff filed this action on August 10, 2010. Plaintiff alleges that she was misled into obtaining a fraudulent mortgage loan from defendant Wells Fargo Bank, N.A., dba America's Servicing Company ("Wells Fargo") on or around September 29, 2004. (Compl. at ¶ 5.) Plaintiff claims that defendants noticed a trustee sale, and refused her offer to pay. The complaint also alleges that defendants "wrongfully proceed[ed] with foreclosure and Trustee's Sale of Plaintiff's property without production of either the original note or being the 'holder in due course' or giving proper notice of foreclosure." (Id. at 2.) According to defendants, plaintiff defaulted on the note in October, 2009, and notice of default was recorded by T.D. Service Company ("T.D. Service"), foreclosure trustee, on May 13, 2010. (Wells Fargo's Opp'n at 2.) Defendants proceeded with the trustee sale on September 8, 2010, and the property was sold on that date. (Id.)

The complaint contains claims for violation of the Truth in Lending Act, Fair Debt Collection Practices Act, and California's Rosenthal Act, and for fraud, breach of implied covenant of good faith and fair dealing, and "unlawful and wrongful foreclosure." Plaintiff seeks declaratory and injunctive relief, and compensatory and punitive damages.

DISCUSSION

I. Legal Standards

A. Temporary Restraining Order / Preliminary Injunction

The standards governing the issuance of temporary restraining orders are "substantially identical" to those governing the issuance of preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir.2001). Therefore, "[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 Ass'n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (quoting Winter v. Natural Res. Def. Council, Inc., U.S. ,, 129 S. Ct. 365, 374 (2008)). "A preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor." Alliance for the WildRockies v. Cottrell, 622 F.3d 1045, 1049-50 (9th Cir. 2010) (quoting Lands Council v. McNair, 537 F.3d 981, 97 (9th Cir. 2008) (en banc)). A TRO is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 129 S. Ct. at 376.

The Ninth Circuit has reiterated that under either formulation of the principles, if the probability of success on the merits is low, preliminary injunctive relief should be denied: Martin explicitly teaches that "[u]nder this last part of the alternative test, even if the balance of hardships tips decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is a fair chance of success on the merits."

Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (quoting Martin v. International Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984)).

B. Motion to Dismiss

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, U.S., 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at ...


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