United States District Court, S.D. California
ORDER DENYING TEMPORARY RESTRAINING ORDER
Roger T. Benitez United States District Judge.
26, 2017, Plaintiff Janar Wasito, proceeding pro se, filed an
ex parte motion for a temporary restraining order
(“TRO”) to postpone the July 28, 2017 foreclosure
sale on his residence. He also submitted a request for
judicial notice to support his ex parte motion. The Court has
reviewed and considered both filings.
Court is familiar with the allegations in this case, as they
are substantially the same as his allegations in Case No.
17-cv-1279. In that case, on July 6, 2017, the Court granted
Plaintiff a temporary restraining order to delay the
foreclosure sale on his house. The Court issued the TRO to
preserve the status quo until a hearing could be held. The
Court held a preliminary injunction hearing on July 13, 2017.
After careful consideration of the parties' arguments and
the governing law, the Court denied Plaintiff's request
for a preliminary injunction. The Court held that Plaintiff
had not demonstrated a likelihood of success on the merits,
that the balance of equities tips in his favor, or that the
public interest favors enjoining the foreclosure. The same
reasons lead this Court to conclude that a temporary
restraining order should not issue in this case.
claims that Defendants Wells Fargo Bank, N.A. and Specialized
Loan Servicing LLC, the previous and current servicers of his
loan, respectively, breached a duty of care in processing and
reviewing his applications for a loan modification.
Plaintiff's theory is that Wells Fargo improperly denied
him a loan modification in 2013. Because he was allegedly
improperly denied a loan modification in September 2013, he
believes he overpaid his monthly mortgage payments until May
2015. At the preliminary injunction hearing, Plaintiff
conceded he has not made his monthly mortgage payments since
May 2015. He brings claims for negligence and negligent
infliction of emotional distress.
temporary restraining order is extraordinary relief, the
underlying purpose of which is to preserve the status quo
before a preliminary injunction hearing may be held.
Granny Goose Foods, Inc. v. Brotherhood of Teamsters
& Auto Truck Drivers Local No. 70 of Alameda Cnty.,
415 U.S. 423, 439 (1974). For a TRO to issue, the movant must
show either (1) a combination of likelihood of success on the
merits and the possibility of irreparable harm, or (2) that
serious questions going to the merits are raised and the
balance of hardships tips sharply in favor of the moving
party. Jones v. H.S.B.C. (USA), 844 F.Supp.2d 1099,
1099 (S.D. Cal. 2012) (citing Immigrant Assistance
Project of Los Angeles Cnty. Fed'n of Labor v. INS,
306 F.3d 842, 873 (9th Cir. 2002). “[T]hese two
formulations represent two points on a sliding scale in which
the required degree of irreparable harm increases as the
probability of success decreases.” Dep't of
Parks & Recreation of Cal. v. Bazaar del Mundo Inc.,
448 F.3d 1118, 1123 (9th Cir. 2006). If the movant shows no
chance of success, injunctive relief should not issue.
Id. at 1124.
California courts impose a duty of care on a lender or loan
servicer in reviewing a loan for a potential modification.
Alvarez v. BAC Home Loans Servicing, L.P., 228
Cal.App.4th 941 (2014). But see Marques v. Wells Fargo
Bank, N.A., No. 16-cv-03973, 2016 WL 5942329, at *6-7
(N.D. Cal. Oct. 13, 2016) (discussing split in authority
regarding whether loan servicers owe borrowers a duty of care
in processing modification applications and declining to
impose a duty of care). However, even if this Court finds
such a duty, Plaintiff has not demonstrated a likelihood of
success or serious questions going to the merits of his
claims. The Court heard Plaintiffs arguments regarding the
allegedly negligent 2013 loan modification denial at the
preliminary injunction hearing and considered the evidence
offered. Plaintiff appealed the denial of that modification,
and his appeal was denied. (See Decl. of Specialized
Loan Servicing, LLC ¶ 11, Case No. 17-cv-1279, Doc. No.
23). He also applied for and was denied other loan
modifications over the years. (See Id. ¶¶
18, 30-32). Plaintiff fails to explain why these reviews were
not adequate to correct the alleged error in the 2013
has not made a mortgage payment in over two years. He has not
made a credible offer of tender. He has not demonstrated a
likelihood of success or serious questions going to the
merits, nor has he shown why it would be equitable to
postpone the foreclosure sale again.
motion for a temporary ...