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Diaz v. Wells Fargo Bank, N.A.

United States District Court, Ninth Circuit

November 25, 2013

ARMANDO DIAZ, Plaintiff,
v.
WELLS FARGO BANK, N.A.; CAL-WESTERN RECONVEYANCE CORP.; and Does 1 through 20, Defendants.

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

LUCY H. KOH, District Judge.

Plaintiff Armando Diaz filed an Ex Parte Application for a Temporary Restraining Order ("TRO") and Order to Show Cause ("OSC") Re: Preliminary Injunction on November 25, 2013, to stop the foreclosure sale of his home, which is located in Santa Clara, California. ECF No. 18. Defendant Wells Fargo filed an Opposition to the Plaintiff's Application. ECF No. 22. Having considered the Application and Opposition, the Court DENIES Plaintiff's Application for TRO and OSC Re: Preliminary Injunction.

I. BACKGROUND

Plaintiff took out a loan for $460, 000 from Defendant Wells Fargo's predecessor, World Savings Bank. ECF No. 22 at 1. The loan was secured by a deed on Plaintiff's home in Santa Clara. Id. Plaintiff defaulted on the loan by failing to make the December 2012 and subsequent payments. Id. A Notice of Default was recorded on May 15, 2013. ECF No. 25, Ex. G. A Notice of Sale was recorded on October 1, 2013. ECF No. 25, Ex. H.

Plaintiff initially brought this action in Santa Clara County Superior Court on October 8, 2013, alleging that Defendants Wells Fargo Bank and Cal-Western Reconveyance Corporation violated the terms of a class action settlement, California Civil Code § 2623.55, and California Business and Professions Code § 17200. ECF No. 1, Ex. A ("Compl.").

Plaintiff's principal allegation in his Complaint was that Defendants violated the class action settlement in In re: Wachovia Corp. "Pick-A-Payment" Mortgage Marketing and Sales Practices Litig. (" Wachovia "), No. 09-2015, ECF No. 207 (N.D. Cal. May 17, 2011) (final approval order). See Compl. ¶ 11. In that multi-district litigation, plaintiffs alleged that defendants violated the federal Truth in Lending Act ("TILA"), 15 U.S.C. 1601, et. seq., and various state laws because defendants' loan documents, which allowed borrowers to choose among various payment levels on their mortgages, did not make adequate disclosures. Wachovia, No. 09-2015, ECF No. 207, at 2. The settlement of that case had two components: a cash payment of $178.04 to class members and a set of procedures that obligated Wells Fargo to consider class members for loan modification under federal programs. Id. at 2-3. Judge Fogel, who presided over the Wachovia settlement, retained jurisdiction to enforce its terms. Id. at 4. The Wachovia case has subsequently been reassigned to Judge Seeborg. Wachovia, No. 09-2015, ECF No. 553. Plaintiff's central allegation in this case is that Defendants violated the Wachovia settlement by not considering Plaintiff, a class member, for a loan modification. Compl. ¶ 14.

In his Complaint, Plaintiff further alleged that Defendants violated California Civil Code § 2923.55 by recording a Notice of Default against Plaintiff's property without discussing foreclosure avoidance options with Plaintiff and without informing Plaintiff of his rights under the statute. Compl. ¶¶ 37, 41. Finally, Plaintiff alleged that Defendants violated California Business and Professions Code § 17200 by engaging in unfair and fraudulent conduct. Compl. ¶ 46-67.

On October 20, 2013, Plaintiff applied for a temporary restraining order in state court, contending that Defendants' impending trustee sale would violate California Civil Code § 2923.55(b)(2). ECF No. 23, Ex. I. On October 21, 2013, the Santa Clara County Superior Court issued an order granting Plaintiff a temporary restraining order, which prevented the foreclosure sale scheduled for October 22, 2013. ECF No. 18, Ex. 5. In addition to issuing the TRO, the state court ordered Defendants to show cause as to why a preliminary injunction should not issue. Id. The hearing on the order to show cause was set for November 5, 2013, which was also the date on which the TRO was set to expire. Id.

On October 23, 2013, before briefing on the order to show cause in state court began, Defendants removed this action to federal court. ECF No. 1. Defendants assert that there is federal-question jurisdiction, because the case concerns interpretation of an agreement settling a federal case and that there is diversity jurisdiction. Id. On October 30, 2013, Defendants moved to dismiss the Complaint. ECF No. 6.

On November 21, 2013, Plaintiff filed an amended complaint. ECF No. 14 ("FAC"). The FAC included not only the three causes of action in the original Complaint, but also added a fourth. The newly added fourth cause of action alleged that Defendants violated California Civil Code § 2924.17(b), under which "a mortgage servicer shall ensure that it has reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose, including the borrower's loan status and loan information" before the mortgage servicer serves a notice of default, notice of sale, assignment of a deed or trust, or substitution of trustee. In his FAC, Plaintiff alleged that Defendants violated this provision because the Substitution of Trustee and Notice of Trustee's Sale that Defendants recorded against Plaintiff's property do not contain the specific language stating that Defendants had reviewed reliable evidence to substantiate the borrower's default as required by section 2924.17 of the Civil Code. FAC ¶ 75-77. Plaintiff contends that the absence of this specific language suggests that Defendants did not engage in the statutorily mandated review. ECF No. 18 at 4.

On November 23, 2013, Plaintiff filed a Motion to Remand this matter to state court, alleging that there is no basis for federal subject-matter jurisdiction. ECF No. 16. On November 25, 2013, Plaintiff filed the instant Application for a TRO and OSC Regarding Preliminary Injunction, in which he states that the trustee's sale is scheduled for November 26, 2013, at 10 a.m., and that Defendants' failure to meet the requirements of Civil Code sections 2924.17(b) and 2923.55 requires this Court to enjoin any such trustee's sale. ECF No. 18 at 3-8. Defendants filed an Opposition. ECF No. 22. In the Opposition, Defendants state that the trustee's sale is scheduled for December 10, 2013. Id. Because there was a discrepancy in the date of the trustee's sale and because neither party cited anything to support their respective dates of the sale, this Court ordered the parties to resolve the discrepancy by providing supporting documentation that would clarify the date of the trustee's sale. ECF No. 24. Defendants responded stating that the trustee's sale had been continued to December 10, 2013, but that there was no available documentation regarding the date of the sale. ECF No. 25. Plaintiff did not respond.

II. LEGAL STANDARD

The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. Brown Jordan Int'l, Inc. v. Mind's Eye Interiors, Inc., 236 F.Supp.2d 1152, 1154 (D. Haw. 2002); Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D. Cal. 1995). "A plaintiff seeking a preliminary injunction 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." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (emphasis added). The party seeking the injunction bears the burden of proving these elements. Klein v. City of San ...


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