UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
April 14, 2011
MARGARITA M. SANCHEZ,
WACHOVIA MORTGAGE CORPORATION, WELLS FARGO BANK, N.A., NDEX WEST, LLC, AND DOES 1-100, INCLUSIVE,
The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER
AND ORDERING PLAINTIFF TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED
alleging claims of negligence, negligence per se, and fraud against Defendants. See Compl. (Dkt. 19 No. 1, Ex. A). In the Complaint, Plaintiff seeks a Temporary Restraining Order (TRO) to enjoin a 20 foreclosure sale set for February 22, 2011 on her property at 4895 Peninsula Point Drive, Seaside, CA 93955. See Compl. at 5. Plaintiff alleges that Defendants have refused to modify her loan in 22 bad faith.
On March 1, 2011, Defendant Wachovia Mortgage (a division of Wells Fargo Bank, N.A.) 24 removed the case to this Court on the basis of diversity jurisdiction. See Removal. On March 22, 25 2011, Wachovia Mortgage filed a Motion to Dismiss all the causes of action in the Complaint, and 26 a Motion to Strike. The hearing on these Motions was set for April 28, 2011. Therefore, Plaintiff's 27 Opposition to both Motions was due on April 7, 2011. See Civ. L.R. 7-3. As of the date of this
On February 22, 2011, Plaintiff filed a complaint in the Superior Court of Monterey County Order, Plaintiff has filed no Opposition, or statement of nonopposition, in violation of Civil Local Rule 7-3.
4 to say that the TRO issued by the Superior Court would expire on April 1, 2011, and that the 5 foreclosure sale had been rescheduled for that day. Plaintiff's counsel requested an ex parte 6 hearing on April 1, 2011, in order to extend the TRO for 30 days. Plaintiff's counsel was advised 7 to consult the relevant rules regarding standards for ex parte motions and to make a motion if 8 appropriate.
On March 30, 2011, counsel for Plaintiff contacted the chambers of the undersigned Judge
Two weeks later, on April 13, 2011, Plaintiff's counsel filed an "Ex Parte Application for
TRO and OSC Re: Preliminary Injunction to Postpone the Trustee's Sale Pending Defendant's
Review of Plaintiff's Loan Modification Application." In the request for TRO, Plaintiff states that
the foreclosure sale of her home has been rescheduled for April 15, 2011, and asks the Court to 13 enjoin the sale for 30 days in order to allow Wachovia Mortgage to review her loan modification 14 application. Although Plaintiff states she has given notice of the Motion to Defendants, Plaintiff 15 asks the Court to issue the order immediately and ex parte, without an opportunity for Defendants 16 to be heard on the matter. 17
18 qualify for a modification pursuant to Cal. Civ. Code § 2923.6. However, Plaintiff has provided no 19 case law supporting this position or issuing a TRO on such a basis. Furthermore, "nothing in Cal. Civ. Code § 2923.6 imposes a duty on servicers of loans to modify the terms of loans or creates a 21 private right of action for borrowers." Farner v. Countrywide Home Loans, No. 08cv2193
The standard for issuing a TRO is identical to the standard for issuing a preliminary injunction. Brown Jordan Int'l, Inc. v. Mind's Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. 25
(N.D. Cal. 1995). A plaintiff seeking a preliminary injunction must make a four-fold showing: (1) 27 that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the 28 absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an
In support of her request, Plaintiff counsel states her belief that Plaintiff's loan should
BTM(AJB), 2009 U.S. Dist. LEXIS 5303, *4-5 (S.D. Cal. Jan. 26, 2009). 23
Haw. 2002); Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 26
injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 2
(2008); Amer. Trucking Assocs., Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). 3
Plaintiff's attorney's conclusory statement that Plaintiff qualifies for a loan modification does not amount to a likelihood of success on the merits of Plaintiff's claims. While the Court 5 recognizes that loss of one's home constitutes irreparable harm, the procedural history in this 6 matter shows that Plaintiff has delayed bringing this Motion for TRO until the eve of the 7 foreclosure sale and has failed to prosecute this case, including failure to timely respond to case-8 dispositive motions. Saba v. Caplan, No. C 10-02113 SBA, 2010 U.S. Dist. LEXIS 76790, at *13-9
*14 (N.D. Cal. July 6, 2010). It appears that Plaintiff is attempting to benefit by delaying and thus 10 depriving Defendants of an opportunity to be heard. Accordingly, the Court finds that the balance of equities weighs against Plaintiff. Finally, Plaintiff has failed to show that the public interest
weighs in favor of postponing the foreclosure sale. Therefore, Plaintiff's Motion is DENIED.
14 dismissed for failure to prosecute. Within 14 days of the date of this Order, Plaintiff shall submit 15 a response demonstrating why the matter should not be dismissed. This Order does not constitute 16 permission to file late oppositions to the pending Motions. Failure to respond will result in 17 dismissal. Accordingly, the hearing on the Motion to Dismiss and Strike, and the Case 18
Management Conference, currently set for April 28, 2011, are hereby VACATED.
In addition, the Court hereby Orders Plaintiff to show cause why this matter should not be
IT IS SO ORDERED.
© 1992-2011 VersusLaw Inc.