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Walls v. Wells Fargo Bank, N.A.

United States District Court, N.D. California

April 25, 2017

BRENDA WALLS, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

         ORDER GRANTING PLAINTIFF'S APPLICATION FOR A TEMPORARY RESTRAINING ORDER, ORDERING DEFENDANT TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE, DENYING PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES AND COSTS, AND DIRECTING PLAINTIFF TO EFFECT SERVICE OF PROCESS RE: DKT. NO. 5

          HAYWOOD S. GILLIAM, JR. United States District Judge.

         Pending before the Court is Plaintiff Brenda Walls' Ex-Parte Application for Temporary Restraining Order and/or Preliminary Injunction. Dkt. No. 5. Plaintiff seeks injunctive relief preventing the foreclosure sale of her home, as well as attorney's fees and costs. Id. Having carefully considered Plaintiffs arguments, the Court GRANTS Plaintiffs application for a temporary restraining order, ORDERS Defendant to show cause why a preliminary injunction should not issue, and DENIES Plaintiffs request for attorney's fees and costs.

         I. FACTS AND PROCEDURAL HISTORY

         Plaintiff alleges the following facts:

• On January 24, 2007, Plaintiff purchased the subj ect property, located at 4201 Apollo Circle, Union City, CA 94587 (“Property”), with a loan from World Savings Bank, FSN. Dkt. No. 5-2 (“Pl.'s Decl.”) ¶ 4.
• In 2008, World Savings Bank, FSB, changed its name to Wachovia Bank, and was subsequently acquired by Defendant Wells Fargo Bank, N.A. in November of 2009. Dkt. No. 1 (“Compl.”) ¶ 8.
• In late 2012 or early 2013, Plaintiff fell behind on her mortgage payments and defaulted on her loan. Pl.'s Decl. ¶ 4. A notice of default was then filed on February 24, 2014. Compl. Ex. 2.
• At some time after her default, Plaintiff contacted Defendant to discuss a refinance or loan modification. Pl.'s Decl. ¶ 5. Defendant suggested that Plaintiff apply for a Home Affordable Modification Program (“HAMP”) loan modification. See Id. However, Plaintiff was subsequently denied the loan modification due to low income. Id.
• On January 10, 2017, Plaintiff submitted a new application for loan modification, as her financial situation had improved. Id. ¶¶ 6, 7. Specifically, her monthly income had increased from approximately $1, 350 to approximately $5, 100. Id. ¶ 8.[1]
• However, on February 3, 2017, Defendant denied Plaintiffs application. Id. Defendant explained to Plaintiff that the monthly income used to assess the application was the previous $1, 350 instead of Plaintiff s current income of $5, 100. Id. Plaintiff then informed Defendant's assigned Single Point of Contact (“SPOC”) of the error, and Defendant instructed Plaintiff to resubmit the application in another month with additional bank statements to show the consistency of the new income. Id.
• On March 31, 2017, Plaintiff submitted a new application with another month of bank statements reflecting her current average monthly income of $5, 100. Id. ¶ 9. However, her application was denied on or about April 18, 2017. Id. ¶ 10. Defendant explained that there had not been a material change in Plaintiffs circumstances since the February 2017 denial. Id. In response to Plaintiffs questions, Defendant's SPOC confirmed that Defendant again used the $1, 350 monthly income in assessing Plaintiffs application. Id. Defendant's SPOC informed Plaintiff that there was nothing that he could do, and that the trustee's sale date was “active” for April 25, 2017. Id.; see also Dkt. No. 5, Ex. 1 (PropertyRadar profile stating that foreclosure sale will occur at noon on April 25, 2017).[2]

         On April 19, 2017, Plaintiff filed the complaint. On April 21, 2017, Plaintiff filed the pending application for a temporary restraining order (“TRO”) or permanent injunction (“PI”). In addition, Plaintiff's counsel filed a declaration stating that he had given notice of the filing of the complaint to Defendant. Dkt. No. 5-3. On April 24, 2017, the case was reassigned to the undersigned. Dkt. No. 8. The Court set a hearing for 9:00am on April 25, 2017, and ordered that any written opposition by Defendant be filed by 9:00pm on April 24, 2017. Dkt. No. 9. Given that Defendant has yet to appear in this suit, the Court ordered Plaintiff to serve the notice of the hearing on Defendant immediately by facsimile and to notify Defendant immediately by phone. See Id. On April 24, 2017, Plaintiff's counsel filed a declaration stating that he had provided such notice to Defendant (specifically, to one of Plaintiff's Single Points of Contact, as well as to a member of the team assigned to Plaintiff's loan due to the pending foreclosure). Dkt. No. 10. Defendant did not file any written opposition. Plaintiff and her counsel appeared at the hearing, but Defendant did not appear. At the hearing, Plaintiff's counsel acknowledged that while he gave notice to Defendant regarding the filing of Plaintiff's complaint and application for injunctive relief, and reached out to the Pasadena, California, office of a law firm that he said had represented Defendant in the past (Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP), he did not actually serve the complaint or the application for injunctive relief on Defendant prior to the hearing.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 65 governs temporary restraining orders and preliminary injunctions. A preliminary injunction enjoins conduct pending a trial on the merits. See Fed. R. Civ. P. 65(a). A temporary restraining order enjoins conduct pending a hearing on a preliminary injunction. See Fed. R. Civ. P. 65(b). The standard for issuing a temporary restraining order is the same as for a ...


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