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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 of that regulation "is to promote the informed use of consumer credit by requiring disclosures about its terms and cost." 12 C.F.R. § 226.1(b). Plaintiff has no likelihood of success on this claim.

2. Civil Code § 2924g

Plaintiff asserts an original notice of a trustee's sale was recorded on July 17, 2009 (ECF 4-1 at 3), but a new notice was never recorded (Clay Decl. ¶ 4). Civil Code § 2924g requires a trustee to provide a new notice of a sale when the sale has been postponed for more than 365 days. Cal. Civ. Code § 2924g(c)(2). The new notice must conform with the procedures prescribed in § 2924f. Id. Yet in his declaration plaintiff says the notice of the trustee's sale attached as Exhibit 1 was "recorded in the Office of the County Recorder of San Joaquin County." (Clay Decl. ¶ 4.) These assertions can mean only one of two things: the attached notice of the February 26, 2013 sale is the original notice recorded on July 17, 2009 -- in which case plaintiff knew of this impending sale for over three years and is only acting now -- or the attached notice of the February 26, 2013 sale is the new notice informing plaintiff of the sale. Either way, plaintiff is not likely to prevail on this claim, because plaintiff "could have sought relief by motion for preliminary injunction at an earlier date without the necessity for seeking a temporary restraining order," L.R. 231, or because plaintiff asserts in contradictory fashion that the notice attached to this pending motion was in fact recorded in the San Joaquin County Recorder's Office.

3. Civil Code § 2924.8(a)

Plaintiff's final argument in support of the present motion is based on the claim that the notice of trustee's sale is defective because it was not sent to plaintiff twenty days prior to the sale, in violation of Civil Code § 2924.8(a). (Clay Decl. ¶ 4; ECF 4-1 at 3.) That provision requires the trustee to post a notice of sale as provided by § 2924f, which in turn requires that "[a] copy of the notice of sale . . . be posted in a conspicuous place on the property to be sold at least 20 days before the date of sale . . . If the property is a single-family residence the posting shall be on a door of the residence . . . ." Cal. Civ. Code § 2924f(b)(1). Plaintiff declares under penalty of perjury that defendants never complied with this law. (Clay Decl. ¶ 5.) On this record, it is likely plaintiff will prevail on this claim.

However, plaintiff has demonstrated only that the trustee does not have the authority to proceed with the sale on February 26, 2013. Plaintiff has not demonstrated that at most more than temporary relief during the pendency of this case is warranted. Villarreal v. Onewest Bank, FSB, No. 2:10-cv-00781-GEB-KJM, 2010 WL 1416760, at *4 (E.D. Cal. Apr. 8, 2010) (citing Gonzalez v. Wells Fargo Bank, No. C 09-02444 MHP, 2009 WL 3572118, at *6 (N.D. Cal. Oct. 30, 2009) ("Failure to comply with [Cal. Civ. Code § 2924f(b)(1)] would require

[a] court to set aside the nonconforming portion of the foreclosure proceedings and force defendants to provide [plaintiff] with proper notice."));4 Harry D. Miller & Marvin B. Starr, California Real Estate § 10:199 (3d ed. 2012) ("[I]f the notices are given for a date of sale within the 20-day period, it is not necessary to start the proceedings over again . . . [T]he sale can be postponed to a date that is beyond the required 20-day period.")).

B. Irreparable Harm

Plaintiff has provided a declaration stating that he will suffer irreparable harm if injunctive relief is not granted. Plaintiff asserts he will lose his original down payment, all mortgage payments, and other monies, and "[w]orst of all, [he] will lose [his] home and will be rendered homeless." (Clay Decl. ¶ 3, ECF 4-2.) "With respect to irreparable injury, a plaintiff's loss of her residence is usually sufficient to satisfy this element." Kilgore v. Wells Fargo Home Mortg., No. 1:12-CV-00899 AWI, 2012 WL 2195656, at *1 (E.D. Cal. June 13, 2012) (citing Park Village Apartment Tenants Ass'n v. Mortimer Howard Trust, 636 F.3d 1150 (9th Cir. 2011)). Plaintiff has satisfied this factor.

C. Balance of the Equities and the Public Interest

A temporary restraining order will only delay the trustee sale of the property until defendant has complied with the twenty-day notice rule under § 2924f(b)(1). As defendants could have conducted a trustee's sale on the property since such a notice was first recorded on July 17, 2009 (ECF 4-1 at 3), this slight further delay will pose little prejudice to defendants. Furthermore, it is "evident that the balance of equities and the public interest favor the issuance of a TRO that upholds the procedural requirements applicable to non-judicial foreclosures." Villarreal, 2010 WL 1416760, at *5. This prong is also satisfied.


Plaintiff's motion for a temporary restraining order is GRANTED IN PART.

Defendants are enjoined from conducting the sale of 4143 Riverbrook Court, Stockton, California 95219, APN number 16-520-05, until the expiration of the twenty day period imposed by California Civil Code § 2924f(b)(1). The court further orders:

1. A hearing on plaintiff's motion for a preliminary injunction will be held on March 14, 2013 at 2:30 p.m;

2. Defendants shall file their opposition by March 9, 2013; and

3. Plaintiff shall file any reply by March 12, 2013.


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