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The Michael J. Weber Living Trust v. Wells Fargo Bank

March 25, 2013

THE MICHAEL J. WEBER LIVING TRUST, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Jon S. Tigar United States District Judge

ORDER DENYING PRELIMINARY TEMPORARY RESTRAINING ORDER Re: Dkt. No. 15

Plaintiff The Michael J. Weber Living Trust ("Plaintiff") moves for a temporary 15 restraining order ("TRO") seeking to restrain Defendant Wells Fargo Bank, N.A. ("WFB") from 16 proceeding with a trustee sale of 14145 Byron Highway, Byron, CA ("the Byron property"). Dkt. 17 No 15. Since Plaintiff has not demonstrated that it is likely to succeed, or even that there is any 18 serious question going to the merits of its claim, the Court DENIES the motion.

I. BACKGROUND

A. Factual Background

In July 2007, Plaintiff borrowed $780,000from World Savings Bank, FSB ("World Savings"), secured by a deed of trust recorded against the Byron property. Declaration of Michael 24 Weber ("Weber Decl."), Dkt. No. 15, ¶ 3; Defendants‟ Request for Judicial Notice ("RJN"), Dkt. 25 No. 17, Exh. D.*fn1 Later that year, Plaintiff borrowed an additional $732,000 from World Savings, 26 27

secured by a deed of trust against 1928 Mantova Street, Danville, CA ("the Danville property").1 2

RJN, Exh. B. World Savings later changed its name to Wachovia Mortgage, and then to Wells 3 Fargo Bank Southwest N.A., before finally merging into WFB. RJN Exhs. F, G & H. Plaintiff 4 defaulted on the Byron property loan in May 2012. RJN, Exh. J. Trustee NDex West, LLC, 5 recorded a Notice of Trustee‟s Sale on October 1, 2012. RJN, Exh. L. 6

B. Procedural History

On October 31, 2012, Plaintiff filed a complaint in Contra Costa County Superior Court 8 against Defendant WFB seeking to enjoin the foreclosure proceedings against the Byron property. 9 10 Case No. C12-02596. WFB removed the case to federal court. Case No. 3:12-cv-06122-LB, Dkt. 11 No. 1. Plaintiff then voluntarily dismissed that case without prejudice. Case No. 3:12-cv-06122-12 LB, Dkt. No. 10.

On January 30, 2013, Plaintiff filed a complaint ("the Complaint") in Contra Costa County Superior Court against Defendants WFB and WFB employee Heather Polgar seeking, inter alia, to 15 enjoin foreclosure proceedings against the Byron property and the Danville property. Case No. 16

C13-00139. The Superior Court issued a temporary restraining order ("TRO") restraining the sale 17 18 of the Byron property pending a hearing scheduled for February 8. Case No. C13-00139. Before 19 that hearing occurred, WFB removed the case to this Court, arguing that Defendant Polgar was 20 Recorder‟s Office, (D) a Deed of Trust dated December 13, 2007 and recorded in the official records of the Contra Costa County Recorder‟s Office, (F) a letter dated November 19, 2007 22 issued by the Office of Thrift Supervision ("OTS"), Department of the Treasury, (G) the Charter of Wachovia Mortgage, FSB, effective December 31, 2007 and signed by the OTS, (H) the 23

WFB, (J) a Notice of Default dated May 24, 2012 and recorded in the official records of the Contra Costa County‟s Recorder‟s Office, and (K) a Substitution of Trustee dated February 9, 25

668, 689 (9th Cir. 2001). Because Exhibits B, D, J, and K are public records, the Court takes judicial notice of the undisputable facts contained in them. The Court also takes judicial notice of 27 facts readily determinable from Exhibits F, G and H because the federal government agencies who issued and signed them are sources "whose accuracy cannot reasonably be questioned." Fed. R. 28

Official Certification of the Comptroller of the Currency stating that effective November 1, 2009, Wachovia Mortgage converted into Wells Fargo Bank Southwest, N.A., which then merged into 24 2011, and recorded in the official records of the Contra Costa County Recorder‟s Office. The Court may take judicial notice of matters of public record. Lee v. City of Los Angeles, 250 F.3d 26 Evid. 202(b)(2). The Court did need to refer to the additional documents in Defendants‟ RJN, and so did not reach the question of whether those documents are judicially noticeable.

fraudulently joined and therefore could not defeat federal diversity jurisdiction. Dkt. No. 1. 1 2 On February 15, Plaintiff filed an application for a TRO and an order to show cause why a 3 preliminary injunction should not issue, seeking to restrain WFB from proceeding with a planned 4 foreclosure sale of the Danville property. Dkt. No. 6. On the day of a scheduled February 19 5 hearing ...


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