Haller v. Wells Fargo Bank NA et al

Filing 27

ORDER denying 22 Plaintiff's Motion to Stay; ORDER granting Wells Fargo's request to supplement its Motion for Attorney's Fees. Signed by Judge Frederick J Martone on 12/1/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Wells Fargo Bank NA; World Savings)
Bank FSB; MTC Financial Incorporated, )
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Defendants.
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Michael Dean Haller,

CV 11-01381-PHX-FJM
ORDER

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The court has before it plaintiff's motion requesting a stay pending appeal or
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alternatively a bond hearing (doc. 22) and Wells Fargo's response (doc. 25). Plaintiff did not
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file a reply in support of his motion requesting a stay, and the time for submitting a reply has
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expired.
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Plaintiff filed this action in response to a trustee sale noticed on plaintiff's property
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in March 2011. The complaint asserted three counts for relief: (1) breach of contract, (2)
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accounting, and (3) quiet title. On September 29, 2011 we granted defendant MTC
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Financial's unopposed motion to dismiss and Wells Fargo's motion to dismiss (doc. 15).
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Plaintiff filed a notice of appeal.
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Plaintiff moves for a stay of any trustee sale pending his appeal, or in the alternative
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to set a bond hearing to stay the sale. A stay, rather than directing conduct of third parties,
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acts to halt a portion of a judicial proceeding. Nken v. Holder, 556 U.S. 418, __, 129 S. Ct.
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1749, 1758 (2009). Although there is "functional overlap" between a stay pending appeal

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and an injunction, a stay merely freezes the judicial status quo, while an injunction alters

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people's conduct. Id. The trustee sale that prompted plaintiff's original action was cancelled.

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See Response, ex. A. And our September 29, 2011 order dismissed the action in its entirety.

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Thus, at this time there is nothing left for us to halt or postpone. Rather than a stay, what

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plaintiff is truly seeking is an order from this court preventing Wells Fargo or any other third

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party from commencing a trustee sale on plaintiff's property while his appeal is pending.

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Accordingly, we construe plaintiff's motion as a request for an injunction.

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Rule 62(c), Fed. R. Civ. P. permits a court to grant an injunction pending appeal from

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a final judgment on terms for bond that secures the other party's rights. Wells Fargo opposes

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the motion, arguing that plaintiff has not met his burden of proof to justify an injunction.

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When considering an injunction under Rule 62(c), we apply the same standard used to assess

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motions for preliminary injunctions. Tribal Vill. of Akutan v. Hodel, 859 F.2d 662, 663 (9th

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Cir. 1988). To obtain a preliminary injunction, plaintiff must show that (1) he will likely

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succeed on the merits, (2) he will likely suffer irreparable harm if an injunction is not

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granted, (3) the "balance of equities tips in his favor", and (4) there is a public interest in

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granting the injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct.

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365, 374 (2008). Here, plaintiff has not made any showing that he satisfies the requirements

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for a preliminary injunction. The substantive portion of plaintiff's motion states, in its

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entirety, that "[p]laintiff requests the Court stay any trustee’s sale of [p]laintiff’s property

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pending the appeal, or in the alternative, [p]laintiff moves the Court to set a bond hearing to

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stay the sale." Mot. for Stay at 1. Plaintiff's request falls far short of the "clear showing" that

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the Supreme Court demands before the "extraordinary remedy" of injunctive relief is granted.

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Winter, 555 U.S. at 22, 129 S. Ct. at 376. Because plaintiff has not shown that an injunction

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pending appeal is warranted, a bond hearing is unnecessary. Plaintiff's motion is denied.

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Wells Fargo filed a motion seeking an award of attorney's fees on October 13, 2011

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(doc. 17), prior to plaintiff filing the instant motion. Wells Fargo asks to supplement its

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motion for attorney's fees to include the fees it incurred in responding to this motion. We
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grant Wells Fargo's request.

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IT IS ORDERED DENYING plaintiff's request for stay pending appeal (doc. 22).

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IT IS ALSO ORDERED GRANTING Wells Fargo's request to supplement its

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motion for attorney's fees. Wells Fargo shall have up to and including seven days from the

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date of this order to supplement its motion for attorney's fees (doc. 17) by adding the fees that

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it incurred in responding to this motion.

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DATED this 1st day of December, 2011.

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