United States District Court, N.D. California
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.
HAYWOOD S. GILLIAM, JR. United States District Judge.
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.
FACTS AND PROCEDURAL HISTORY
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.”)
• 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. ¶
• 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
• 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).
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.
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