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Dennly Becker v. Wells Fargo Bank

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 22, 2012

DENNLY BECKER, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., INC.,
DEFENDANT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS*fn1

Pending before the court is plaintiff's third motion for temporary restraining order.*fn2 Because of the emergency nature of plaintiff's request, this matter is submitted on the briefs. E.D. Cal. L.R. 230(g). Upon review of the documents in support, no opposition having been filed and no appearance having yet been made by defendant,*fn3 THE COURT FINDS AS FOLLOWS:

On March 16, 2012, the undersigned recommended that plaintiff's motion for temporary restraining order regarding a March 28, 2012 foreclosure sale of his home located at 604 Hardy Place, Lincoln, CA 95648 be denied. Dkt. no. 13. That recommendation, in part, was based on the lack of evidentiary support for plaintiff's motion. Since issuance of the findings and recommendations, plaintiff has attempted to reinstate his loan and the parties have engaged in correspondence directed to resolution of this matter.

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., 555 U.S. 7 (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 Wild Rockies 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)).

The documents submitted by plaintiff in support of his most recent motion for temporary restraining order indicate that plaintiff has apparently engaged in a good faith effort to reinstate his loan but that because of the timing of the reinstatement quote, plaintiff has been unable to timely remit the reinstatement amount. See Plaintiff's Exh. 3. Plaintiff asserts that the amount has been deposited with his bank with directions that it be made payable to defendant. Despite plaintiff's efforts, defendant has apparently been unwilling to halt the scheduled foreclosure sale. It appears that in the circumstances presented here, plaintiff may be able to amend the complaint to state a claim for a wrongful foreclosure sale and the likelihood of success on the merits of this claim is high. The other three factors the court must consider before issuing temporary injunctive relief all weigh in plaintiff's favor. The court will therefore recommend that a temporary restraining order be issued upon plaintiff's deposit with the court of the reinstatement amount.

Accordingly, IT IS HEREBY ORDERED that pursuant to plaintiff's request, the motions for temporary restraining order, motion for preliminary injunction, and motion to shorten time (dkt. nos. 14, 15, 16) are withdrawn; and

IT IS HEREBY RECOMMENDED that plaintiff's motion for temporary restraining order (dkt. no. 21) be granted, contingent upon deposit with the court of the sum of $29,808.20, to be held by the court pending further order regarding disposition of said sum. Defendant Wells Fargo Bank, N.A., Inc., its affiliates and assignees, including but not limited to Default Resolution Network, a division of Fidelity National Title Company, should be temporarily restrained for a period not exceeding fourteen days from proceeding with a foreclosure sale of the premises located at 604 Hardy Place, Lincoln, CA 95648.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). No later than March 26, 2012, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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