Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Expose v. Fay Servicing, Inc.

United States District Court, E.D. California

September 24, 2019




         Plaintiff Linda Rose Expose (“Plaintiff”) initiated this action on September 17, 2019, against Defendants Fay Servicing, Inc., U.S. Bank National Association Legal Title, Attorney Lender Services, Diane Weifenbach, Esq., and the Law Offices of Diane Weifenbach (“Defendants”), and filed an amended complaint on September 23, 2019 asserting claims for wrongful foreclosure, intentional infliction of emotional distress, and violations of various Federal laws, and seeking 5.5 million dollars in damages against Defendants. (ECF No. 1; ECF No. 4 at 1.) Presently before the Court is Plaintiff’s ex parte motion for a temporary restraining order (“TRO”), titled “Motion for Non-Judicial Restraining Order-Permanent Injunction and Demand for Emergency Hearing Because of Pending Lawsuit, ” filed September 18, 2019. (ECF No. 3.) For the reasons set forth below, Plaintiff’s motion is DENIED.

         I. Factual and Procedural Background

         According to the documents attached to Plaintiff’s TRO, Plaintiff is the Trustor to a Deed of Trust for the real property located at 5413 Pountsmonth Drive, Salida, California (“Subject Property”). (ECF No. 3 at 19.) Plaintiff purchased the Subject Property on or around April 5, 2006, for approximately $400, 000.00, by signing a promissory note. (ECF No. 4 at 9 ¶¶ 13.1, 13.6.) Plaintiff currently disputes the validity of that promissory note. (Id.) The Deed of Trust was recorded on August 14, 2006. (ECF No. 3 at 19.) Plaintiff made monthly mortgage payments of $1, 281.75 to U.S. Bank National Association, who is not a party to this litigation, from August 2006 until March 2010. (ECF No. 4 at 12 ¶ 15.1–15.2.)

         In “late 2019, ” Defendants Attorney Lender Services and Diane Weifenbach notified Plaintiff she was behind on her mortgage payments and foreclosure proceedings were commenced. (Id. at ¶ 15.3.) On or around August 22, 2019, Plaintiff contends she received a Notice of Default from an unspecified attorney. (See id. at ¶ 15.4.) Plaintiff asserts she received a Notice of Trustee’s sale approximately 30 days later. (Id.) The Notice of Trustee’s Sale, recorded on August 15, 2019, states that Plaintiff was in default under the Deed of Trust, that the estimated amount of unpaid balance and other charges pertaining to the Subject Property was $462, 973.33, and that a foreclosure sale was scheduled to occur at noon on September 18, 2019. (ECF No. 3 at 15–17.)

         Plaintiff filed her Motion for TRO in person on September 18, 2019. (ECF No. 3.) The Clerk docketed the Motion on or around 2:58 p.m., nearly three hours after the foreclosure sale was originally set to occur. (See Id . (notice of electronic filing “entered at 2:58 PM PDT and filed on 9/18/2019.”).) Plaintiff then filed an Amended Complaint on September 23, 2019, asserting that the foreclosure sale date was postponed to September 25, 2019, due to a Chapter 13 bankruptcy case Plaintiff had previously filed. (ECF No. 4 at 12 ¶ 15.4.)

         The gravamen of Plaintiff’s complaint against Defendants is that the foreclosure is void because: (1) the defendant who initiated the foreclosure proceedings did not have standing to do so because s/he is not licensed to practice law (see id. at 2 ¶ 1.1, 5–6); (2) the promissory note relating to the Subject Property was sold during the securitization process (see id. at 6–7); and (3) Defendants cannot produce any valid promissory note relating to the Deed of Trust for the Subject Property (see id.). It also appears Plaintiff claims that she owns the Subject Property free and clear. (See id. at 7; see also id. at 9 ¶ 13.2.)

         Plaintiff’s Motion for TRO asserts Defendants’ eviction and foreclosure proceedings must be enjoined or Plaintiff will suffer irreparable harm, presumably the loss of the Subject Property through foreclosure sale and Plaintiff’s subsequent eviction from the Subject Property. (See ECF No. 3 at 6 ¶¶ 24, 39.)

         II. Standard of Law

         A temporary restraining order is an extraordinary remedy. The purpose of a temporary restraining order is to preserve the status quo pending a fuller hearing. See Fed. R. Civ. P. 65. In general, “[t]emporary restraining orders are governed by the same standard applicable to preliminary injunctions.” Aiello v. One West Bank, No. 2:10-cv-0227-GEB-EFB, 2010 WL 406092 at *1 (E.D. Cal. Jan. 29, 2010); see also L.R. 231(a).

         Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); see also Costa Mesa City Emp.’s Ass’n. v. City of Costa Mesa, 209 Cal.App.4th 298, 305 (2012) (“The purpose of such an order is to preserve the status quo until a final determination following a trial.”);, Inc. v. Walt Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“The status quo ante litem refers not simply to any situation before the filing of a lawsuit, but instead to the last uncontested status which preceded the pending controversy.”).

         “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court may weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A stronger showing on the balance of the hardships may support issuing a preliminary injunction even where the plaintiff shows that there are “serious questions on the long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Id. Simply put, Plaintiff must demonstrate, “that [if] serious questions going to the merits were raised [then] the balance of hardships [must] tip[ ] sharply in the plaintiff’s favor, ” in order to succeed in a request for preliminary injunction. Id. at 1134–35 (emphasis added).

         The Eastern District of California Local Rules impose additional requirements for a motion for a temporary restraining order. First, the Court will consider whether the moving party has unnecessarily delayed in seeking injunctive relief. See L.R. 231(b). Second, the moving party must provide specific documents to the court in support of the requested temporary restraining order. See L.R. 231(c).

         III. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.