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Jerome A. Clay, Jr v. Wells Fargo Home Mortgage

February 25, 2013



Plaintiff, proceeding pro se, filed a motion for an ex-parte temporary restraining order in the above-captioned action on February 21, 2013. (ECF 1.) That same day, this court denied the motion without prejudice because plaintiff did not file all the necessary documents. (ECF 3.) On February 25, 2013, plaintiff refiled the motion, this time complying with the requirements of Local Rule 231. (ECF 4.) For the reasons stated below, plaintiff's motion is GRANTED IN PART and the trustee's sale scheduled for February 26, 2013 is temporarily enjoined.


Plaintiff is mortgagor and resident of the single-family home located at 4143 Riverbrook Court, Stockton, California 95219, APN number 16-520-05 (the "property"). (Decl. of Jerome A. Clay ¶¶ 1-3 ("Clay Decl."), ECF 4 at 3.) On a date unknown, plaintiff received a copy of a notice of a trustee's sale of the property. (Id. ¶ 4.) The notice, which does not contain a date of issuance, informed plaintiff that a sale of his property would occur on February 26, 2013. (Ex.1, Clay Decl., ECF 4 at 8). The notice identifies defendant First American Title Insurance Company as trustee.*fn1 (Id.) Plaintiff seeks this temporary restraining order and a preliminary injunction to enjoin this sale. (Mem. in Supp. of Mot. at 1, 3, ECF 4-1.)

Plaintiff pleads nine causes of action, but supports only the following three claims in his memorandum in support of this motion: violations of 1) the Truth in Lending Act ("TILA"); 2) California Civil Code § 2924g; and 3) California Civil Code § 2924.8(a). Plaintiff does not state exactly how any defendant has violated TILA. It appears to the court that he bases his TILA claim on the violations of the California Civil Code provisions he relies on elsewhere in his briefing. (ECF 4-1 at 2-3.)

Plaintiff's second argument, based on his claim of violation of California Civil Code § 2924g, is supported by imprecise and apparently contradictory facts. Plaintiff asserts in his declaration that the notice of the trustee's sale was recorded in the Office of the County Recorder of San Joaquin County. (Clay Decl. ¶ 4.) Plaintiff then declares: "Even though the sale has been postponed for more than 365 days, Defendant has not recorded a new Notice of Trustee's Sale." (Id.) Plaintiff alleges this violates Civil Code § 2924g. In his memorandum in support of the motion, plaintiff additionally asserts that the "Notice of Trustee's Sale was recorded on July 17, 2009 and postponed since that date without being recorded." (ECF 4-1 at 3.)

These nonspecific assertions about notices, without reference to which notice was received on what date, and the lack of date on the notice attached to the motion informing plaintiff of a trustee's sale on February 26, 2013, leave the court without a clear understanding of the time line of relevant events.

Plaintiff also asserts that "[d]efendant has not posted and mailed to me a notice of compliance with the provisions of Civil Code 2924.8(a). (Id. ¶ 5 (emphasis omitted).) In his memorandum, plaintiff explains he has not received the notice twenty days before the scheduled sale. (ECF 4-1 at 3.)


In determining whether to issue a temporary restraining order, a court applies the factors that guide the evaluation of a request for preliminary injunctive relief: whether the moving party "is likely to succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief, . . . the balance of equities tips in [its] favor, and . . . an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that the analysis for temporary restraining orders and preliminary injunctions is "substantially identical"). A temporary restraining order may be issued upon a showing "that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." FED. R. CIV. P. 65(b)(1)(A). The purpose of such an order is to preserve the status quo and to prevent irreparable harm "just so long as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 439 (1974).


The court finds that plaintiff has met his burden in requesting a temporary restraining order in one respect. Plaintiff is likely to succeed on the merits of his claim under Civil Code 2924.8(a); plaintiff has sufficiently demonstrated he is likely to suffer irreparable harm; and the balance of equities and the public interest favor granting a temporary restraining order.

A. Success on the Merits

1. Truth in Lending Act ("TILA")

Plaintiff's TILA claim is not intelligible. Plaintiff claims TILA establishes two conditions that a creditor must meet: "(1) creditor must have disclosed all of the information required by statute and (2) the disclosures must have been true." (ECF 4-1 at 2-3 (citing Barrer v. Chase Bank USA, N.A., 566 F.3d 883, 887 (9th Cir. 2009)).) Barrer involves a class action suit against a credit card provider. Barrer, 566 F.3d at 885-86. The language plaintiff cites from that case is language from the Third Circuit's interpretation of a "Regulation Z." Id. at 887 (quoting Rossman v. Fleet Bank (R.I.) Nat'l Ass'n, 280 F.3d 384, 391 (3d Cir. 2002)). Plaintiff here does not plead or otherwise provide any facts from which a violation of "Regulation Z" could reasonably be inferred, because the purpose ...

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