Kilgore v. Wells Fargo Home Mortgage et al
Filing
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ORDER Lifting Stay; ORDER Denying 53 Letter of Protest, Which Has Been Termed as a Motion for Preliminary Injunction, signed by District Judge Anthony W. Ishii on 5/3/13. (Verduzco, M)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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MARSHA KILGORE,
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Plaintiff,
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v.
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WELLS FARGO HOME MORTGAGE, )
REGIONAL TRUSTEE SERVICES
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CORPORATION, EMMITT LEWIS
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FRED LACKER, et al.,
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Defendants.
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____________________________________)
1:12-CV- 899 AWI SMS
ORDER LIFTING STAY
ORDER DENYING LETTER OF
PROTEST, WHICH HAS BEEN
TERMED AS A MOTION FOR A
PRELIMINARY INJUNCTION
(Document #53)
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This action concerns an action originally filed on May 14, 2012 in the Superior Court for
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the State of California, County of Fresno, concerning a loan and deed of trust against property
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located at 728 East Magill Avenue, Fresno, California 93710 (“the Property). Because the
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complaint appeared to raise federal causes of action, Wells Fargo Home Mortgage (“Defendant
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Wells Fargo”) removed this action to this Court. The Court then granted Defendant Wells
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Fargo’s motion to dismiss the complaint, and the complaint was dismissed with leave to amend.
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Plaintiff filed an amended complaint, and Defendant Wells Fargo moved to dismiss the second
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amended complaint.
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On December 12, 2012 and January 2, 2013, Plaintiff filed notices with the Court that she
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had filed for bankruptcy protection. The Court then ordered this action and all pending motions
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stayed and requested Plaintiff and/or the Bankruptcy Trustee to file a notice of substitution into
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this action or a memorandum concerning whether this action fell within the Bankruptcy Court’s
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Jurisdiction. The Chapter 13 Trustee filed a response to the Court’s order in which the Trustee
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provided legal authority and evidence showing that this action is not part of Plaintiff’s
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bankruptcy filing.
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In light of the Chapter 13 Trustee’s response, the stay in this action must be lifted as this
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action has no effect on any bankruptcy proceedings. Given any stay should be lifted, the Court
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must now address Plaintiff’s amended complaint, Defendant Wells Fargo’s Motion to Dismiss,
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and a pending “LETTER OF PROTEST”, which has been construed as a motion for a
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preliminary injunction. As the motion for a preliminary injunction requests immediate relief,
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that motion shall be addressed first.
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On August 10, 2012, the court gave Plaintiff additional time in which to file an amended
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complaint and restrained Defendants from proceeding with any Trustee Sale of the Property until
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August 20, 2012. While an amended complaint was filed on August 17, 2012, until Plaintiff
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filed her letter of protest on May 1, 2013, Plaintiff never filed another motion for a preliminary
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injunction, never requested a further restraining order, and never opposed Defendants’ motion to
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dismiss. As such, at this time, no restraining order is in effect.
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A plaintiff seeking a preliminary injunction must establish: (1) that she is likely to
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succeed on the merits, (2) that she is likely to suffer irreparable harm in the absence of
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preliminary relief, (3) that the balance of equities tips in her favor, and (4) that an injunction is in
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the public interest. Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008); Park
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Vill. Apt. Tenants Ass'n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011).
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The Court previously entered a temporary restraining order because Plaintiff had provided
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evidence that she was not provided with the Notice of Default or Notice of Sale as required by
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California Civil Code § 2924b.
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contend Plaintiff was not given proper notice. Taking the documents in the light most favorable
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to Plaintiff, Plaintiff requests an injunction stopping any pending sale based on this Court’s grant
The pending motion for a preliminary injunction does not
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of a prior restraining order and equitable factors, such as Plaintiff’s age, lack of legal knowledge,
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and the injury the sale of her home would cause. At this time, Plaintiff cannot show that she is
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likely to succeed on the merits of her claims.
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The basis of the amended complaint appears to be fraud surrounding the original
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transaction and the alleged failure to honor Plaintiff’s notice of recession. As explained in the
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Court’s order dismissing the complaint, there is a one-year statute of limitations period in which
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an action for damages may be filed under TILA. See 15 U.S.C. § 1640(e); Beach v. Ocwen
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Federal Bank, 523 U.S. 410, 412 (1998). A RESPA claim brought under 12 U.S.C. § 2605 is
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subject to a three year statute of limitations period and RESPA claims brought under 12 U.S.C. §
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2607 and § 2608 are subject to a one year statute of limitations. According to the complaint,
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Defendants made false statements to Plaintiff that caused her to refinance a loan and sign a deed
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of trust against the Property in 2006. Plaintiff alleges her attempts to rescind the loan in 2006
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and possibly 2007 were not honored. This action was not filed until 2012.
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complaint makes allegations concerning equitable tolling based on Plaintiff’s medical history and
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Plaintiff’s inability to litigate matters concerning the loan in 2007 and 2008. However, Plaintiff
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is still not likely to succeed on the merits of her claims because of the statute of limitations.
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Even if the Court were to find several years of equitable tolling appropriate, Plaintiff’s claims
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concerning the original loan transaction and the rescission are still bared by the statute of
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limitations.
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The amended
The Court notes that the exhibits attached to the motion for a temporary restraining order
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appear to attempt to broaden Plaintiff’s claims. Plaintiffs’ exhibits imply Plaintiff believes
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Defendants also do not have ownership of the note at issue because they can neither produce the
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original note signed by Plaintiff nor prove they own the note. As these claims are not contained
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in the amended complaint, they cannot serve as a basis for a temporary restraining order. See
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Flast v. Cohen, 392 U.S. 83, 88 (1968) (Because the federal court is a court of limited
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jurisdiction, the court must have before it a case or controversy). Because the complaint in this
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case does not contain allegations raising issues similar to those presented in the many of the
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exhibits, there is no controversy present with respect to such issues and the Court cannot address
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either the likelihood of success on the merits or whether there are serious questions going to the
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merits of additional claims.
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The factors the Court must consider when ruling on a motion for a temporary restraining
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order also side against Plaintiff. At this time, the balance of equities favor Defendants, not
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Plaintiff. The last temporary restraining order set by the Court in this case expired over six
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months ago. While an amended complaint was filed, no additional motions to preclude any sale
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were filed until May 1, 2013. The Court does recognize that not granting Plaintiff a restraining
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order may result in drastic personal ramifications. However, given all evidence before the Court
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indicates Plaintiff is in default and Plaintiff has now been given adequate notice, the Court
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simply cannot grant Plaintiff’s request. Thus, the Court has no choice but to deny Plaintiff’s
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motion.
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ORDER
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Accordingly, the Court ORDERS that:
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1.
The stay that had been issued in this action is now lifted;
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2.
Plaintiff’s letter of protest, which has been termed a motion for a preliminary
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injunction is DENIED; and;
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The Court will issue an order regarding the pending motion to dismiss shortly.
IT IS SO ORDERED.
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Dated:
0m8i78
May 3, 2013
SENIOR DISTRICT JUDGE
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