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Sunil Wadhwa and Lynn Lori Wadhwa v. Aurora Loan Services LLC

September 28, 2011

SUNIL WADHWA AND LYNN LORI WADHWA, PLAINTIFFS,
v.
AURORA LOAN SERVICES LLC, ET AL., DEFENDANTS.



ORDER

This case was on calendar on August 31, 2011 for a hearing on plaintiffs' motion for a preliminary injunction. Eric A. Yadao, Abdallah Law Group, appeared for plaintiffs; Andrew W. Noble, Severson & Werson, appeared for defendants Aurora Loan Services, LLC, Mortgage Electronic Registration Systems, Inc., and Capital One Financial Corporation.

I. Background

On July 6, 2011, plaintiffs filed a complaint against Aurora Loan Services, LLC (Aurora), Capitol One Mortgage Corporation and Mortgage Electronic Registration Systems, Inc. (MERS), alleging causes of action for fraudulent misrepresentation, breach of fiduciary duty, unjust enrichment, civil conspiracy, quiet title, usury and fraud, wrongful foreclosure and breach of security interest, all stemming from the purchase of, and foreclosure on, the real property located at 3055 Orbetello Way, El Dorado Hills, California. ECF No. 1 at 1.

On July 7, 2011, plaintiffs filed a motion for a temporary restraining order (TRO), seeking an order preventing the defendants "from carrying out any unlawful detainer action and/or forcing plaintiffs to vacate their home. . . ," reselling plaintiffs' home, or displacing plaintiffs from the subject property as a result of a pending unlawful detainer trial, then scheduled for July 11, 2011. ECF No. 6-1 at 1-2.

Counsel for plaintiffs submitted a declaration "as required by California Code of Civil Procedure § 1005(b)," averring that he sent notification of this motion to defendants Aurora and MERS "on June 7, 2011," but that no one on behalf of defendant Capitol One Mortgage gave him a fax number. ECF No. 6-4 at 1-2. The court directed plaintiffs' counsel to notify defendants of their right to file an opposition no later than noon on July 8, 2011; counsel filed a certificate of service of the minute order on defendants. Defendants did not oppose the motion. At the hearing on the instant motion, counsel for defendants said that plaintiffs had not provided notice of their request to him, but rather to the clients directly, even though plaintiffs' counsel has interacted with defendants' counsel over the course of several lawsuits about the subject property. Plaintiffs' counsel did not contest this representation.

On July 8, 2011, the court granted the motion in part and directed plaintiffs to post a $25,000 bond by the close of business on July 11. ECF No. 9. On July 11, counsel filed copies of two bonds that had been posted in El Dorado County Superior Court. ECF Nos 11-12. The court notified plaintiffs that these did not satisfy the court's order and, when no other bond was posted, vacated the temporary restraining order. ECF Nos. 14 & 15.

On July 26, 2011, plaintiffs filed a second motion for a temporary restraining order, again seeking to restrain the unlawful detainer proceedings, then set for August 1, 2011. ECF No. 20. Counsel provided essentially the same memorandum of points and authorities he had submitted in connection with the first motion, not acknowledging the fact that the court had rejected most of his arguments in ruling on the first motion. See ECF No. 20-4. Counsel averred that he had served the defendants and claimed that when the court rejected the copies of the state bonds, plaintiffs "solicited a new bond . . .and are prepared to post said bond pursuant to the court's renewal of its order . . .reinstating the TRO . . . ." ECF No. 20-2 ¶ 7. In a minute order, the court directed counsel to file information about the bond and when he did not do so, denied the second motion for a temporary restraining order. ECF Nos. 23 & 24.

On August 2, 2011, plaintiffs noticed a motion for a preliminary injunction, once again seeking to restrain defendants from proceeding with an unlawful detainer action, rescheduled for November 7, 2011. This motion was supported by the same memorandum of points and authorities and a declaration of Sunil and Lynn Lori Wadhwa; the declaration offers a number of legal conclusions couched as factual statements. ECF Nos. 25-2 & 25-3.

Defendants' opposition to the motion attaches copies of a number of actions the Wadhwas have filed in connection with the foreclosure and sale of the El Dorado Hills property. These materials show the following:

* an action filed on December 18, 2009 in El Dorado County Superior Court, which plaintiffs voluntarily dismissed while a demurrer was pending. ECF No. 28-1 to 28-4;

* an action filed on October 14, 2010 in El Dorado County Superior Court, which was removed to this court on June 3, 2011; the Honorable Dale A. Drozd has recommended that the action, Civ. No. S-11-1525, be dismissed as duplicative. ECF No. 28-5 to 28-9;

* an action filed on December 17, 2011 in this court as Civ. No. S-10-3361 WBS DAD, which the court ultimately dismissed because of lack of subject matter jurisdiction. ECF No. 28-10; and

* an unlawful detainer action filed by defendants in El Dorado County Superior Court; most recently the hearing on the action was continued to the November 7 date after plaintiffs filed for bankruptcy. ECF No. 28-12 & 28 ¶ 20.

In addition, the court takes judicial notice of a bankruptcy case, In re Sunil Wadhwa, No. 11-38859 (E.D. Cal.), which was dismissed on August 31, 2011, for ...


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