Becker v. Wells Fargo Bank, N.A., Inc.

Filing 28

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/3/12 ORDERING that the hearing date of 5/16/12 on plaintiff's motion for preliminary injunction is Vacated; Defendant's request for judicial notice [27-2] is granted; and RECOMMENDING that plaintiff's motion for preliminary injunction 26 be denied. Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNLY BECKER,

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Plaintiff,

No. CIV S-12-501 KJM CKD PS

vs.
WELLS FARGO BANK, N.A., INC.,
Defendant.

ORDER AND
FINDINGS AND RECOMMENDATIONS

/
Calendared for hearing on May 16, 2012 is plaintiff’s motion for preliminary

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injunction. Because oral argument is not of material assistance, this matter is submitted on the

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briefs. E.D. Cal. L.R. 230(g). Upon review of the documents in support and opposition, and

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good cause appearing, THE COURT FINDS AS FOLLOWS:

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Plaintiff moves for a preliminary injunction, asserting that he will suffer

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irreparable harm if his properties are foreclosed. The legal principles applicable to a request for

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preliminary injunctive relief are well established. “The traditional equitable criteria for granting

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preliminary injunctive relief are (1) a strong likelihood of success on the merits, (2) the

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possibility of irreparable injury to plaintiff if the preliminary relief is not granted, (3) a balance of

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hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).”

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Dollar Rent A Car v. Travelers Indem. Co., 774 F.2d 1371, 1374 (9th Cir. 1985). The criteria

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traditionally are treated as alternative tests. “Alternatively, a court may issue a preliminary

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injunction if the moving party demonstrates ‘either a combination of probable success on the

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merits and the possibility of irreparable injury or that serious questions are raised and the balance

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of hardships tips sharply in his favor.’” Martin v. International Olympic Comm., 740 F.2d 670,

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675 (9th Cir. 1984) (quoting William Inglis & Sons Baking Co. v. ITT Continental Baking Co.,

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526 F.2d 86, 88 (9th Cir. 1975) (emphasis in original)). See also Alliance for the Wild Rockies

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v. Cottrell, 622 F.3d 1045, 1049-50 (9th Cir. 2010).
The documents submitted by defendant1 in opposition to the motion for

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preliminary injunction establish that plaintiff is in no present danger of having his properties

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foreclosed. See dkt. no. 27-3, Exh. A, B (notices of rescission of notices of default on the subject

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properties). Under these circumstances, plaintiff cannot establish a possibility of irreparable

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injury and the balance of hardships does not tip sharply in plaintiff’s favor. The motion for

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preliminary injunction should therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The hearing date of May 16, 2012 on plaintiff’s motion for preliminary

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injunction is vacated;

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2. Defendant’s request for judicial notice (dkt. no. 27-2) is granted; and

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IT IS HEREBY RECOMMENDED that plaintiff’s motion for preliminary

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injunction (dkt. no. 26) be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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Defendant requests the court take judicial notice of these documents. That request will
be granted.
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shall be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 3, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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becker.pi

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