United States District Court, E.D. California
BRUNO J. BICOCCA, an individual; DIANNA BICOCCA, an individual Plaintiffs,
WELLS FARGO BANK N.A.; NBA DEFAULT SERVICES, LLC; and DOES 1 through 20, inclusive, Defendants.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND UNITED STATES DISTRT JUDGE.
1, 2017, Plaintiffs Bruno J. Bicocca and Dianna Bicocca
(“Plaintiffs”) filed this action in state court
against Wells Fargo Bank N.A. and NBS Default Services, LLC
(“Defendants” unless otherwise noted).
Plaintiffs' Complaint alleges, inter alia, that
Defendants proceeded with foreclosure proceedings against
Plaintiffs' home in violation of California's
Homeowner's Bill of Rights, a 2012 legislative reform
package which made various changes to provisions in the
California Civil Code pertaining to foreclosure safeguards.
On June 1, 2017, Defendants removed Plaintiffs' lawsuit
to this Court, citing diversity of citizenship pursuant to 28
U.S.C. § 1441(b). Defendants subsequently filed a Motion
to Dismiss which is scheduled to be heard on August 10, 2017.
Plaintiffs responded, on June 22, 2017, by filing a Motion to
Remand set for hearing on July 27, 2017, before filing on
July 7, 2017, the Application for Temporary Restraining Order
now before the Court. That request seeks to enjoin a
Trustee's Sale set for July 12, 2017, and as set forth
below it is GRANTED.
2007, Plaintiffs financed their purchase of real property
located in Chico, California by taking out a residential
mortgage with Wells Fargo's predecessor in interest,
World Savings Bank FSB. After Plaintiffs apparently fell into
arrears on their mortgage, NBS, as current trustee, recorded
a Notice of Default on January 13, 2017. Thereafter, on April
17, 2017, NBS recorded a Notice of Trustee's Sale
initially scheduled for May 8, 2017. The Trustee's Sale
has since been continued to July 12, 2017, and Plaintiffs now
ask the Court to enjoin that sale on various grounds
encompassed within the HBOR, including but not limited to
Wells Fargo's alleged failure to assess foreclosure
prevention options as required by California Civil Code
§ 2923.55, Wells Fargo's alleged failure to provide
a Single Point of Contact (“SPOC”) to speak with
Plaintiffs concerning their loan status as required by §
2923.7, and Wells Fargo's alleged failure to provide a
full written notice identifying the reasons why their loan
modification request was denied pursuant to § 2923.6.
Plaintiffs also allege unfair business practices under
California Business and Professions Code §17200 based on
purpose of a temporary restraining order (“TRO”)
is to preserve the status quo pending the complete briefing
and thorough consideration contemplated by full proceedings
pursuant to a preliminary injunction. See Granny Goose
Foods, Inc. v. Teamsters, 415 U.S. 423, 438-39 (1974)
(temporary restraining orders “should be restricted to
serving their underlying purpose of preserving the status quo
and preventing irreparable harm just so long as is necessary
to hold a hearing, and no longer”); see also Reno
Air Racing Ass'n., Inc. v. McCord, 452 F.3d 1126,
1131 (9th Cir. 2006); Dunn v. Cate, No. CIV
08-873-NVW, 2010 WL 1558562, at *1 (E.D. Cal. April 19,
of a temporary restraining order, as a form of preliminary
injunctive relief, is an extraordinary remedy, and Plaintiffs
have the burden of proving the propriety of such a remedy.
See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
In general, the showing required for a temporary restraining
order and a preliminary injunction are the same.
Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush
& Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
party requesting preliminary injunctive relief must show 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 Resources Defense
Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting
Winter). The propriety of a TRO hinges on a
significant threat of irreparable injury that must be
imminent in nature. Caribbean Marine Serv. Co. v.
Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
under the so-called sliding scale approach, as long as the
Plaintiffs demonstrate the requisite likelihood of
irreparable harm and show that an injunction is in the public
interest, a preliminary injunction can still issue so long as
serious questions going to the merits are raised and the
balance of hardships tips sharply in Plaintiffs' favor.
Alliance for Wild Rockies v. Cottrell, 632 F.3d
1127, 1131-36 (9th Cir. 2011) (concluding that the
“serious questions” version of the sliding scale
test for preliminary injunctions remains viable after
absence of any response from Defendants, the Court must
assume that Plaintiffs' allegations are well-founded and
consequently that they have demonstrated a likelihood of
success on the merits sufficient to justify, at this time, a
temporary restraining order. Plaintiffs allege, for example,
that Wells Fargo's declaration that it had assessed
Plaintiff's financial situation and explored options for
avoiding foreclosure, as required by California Civil Code
§ 2923.55(f), was false because no such contacts had
been made. The Court's finding in that regard is
nonetheless based only on the evidence and allegations
presented by Plaintiffs' application and is made without
the Court having the benefit of hearing Defendants'
version of events. This Temporary Restraining Order is thus
being granted only to afford all parties an opportunity to be
heard prior to any Trustee's Sale on Plaintiffs'
determined a likelihood of success at this time based on the
current posture of this matter, the Court notes that
Plaintiffs have also satisfied the remaining factors for
obtaining a TRO. They have adequately shown irreparable harm
by alleging they will lose their primary residence if
Defendants' Trustee's Sale goes forward on July 12,
2017 as scheduled. In addition, the balance of equities tips
sharply in Plaintiffs' favor as a TRO in this instance
merely delays Defendants' right to foreclose until all
parties have been given an opportunity to be heard on the
merits of Plaintiffs' allegations.Finally, an
injunction is in the public's interest as it is being
issued to assure compliance with state laws designed to
protect the public.
the above reasons, the Court GRANTS Plaintiffs'
Application for Temporary Restraining Order (ECF No. 7).
Defendants are hereby enjoined from proceeding forward with
the Trustee's Sale on ...