Habtemariam v. PNC Bank, National Association, et al.

Filing 67

MEMORANDUM AND ORDER signed by District Judge Morrison C. England, Jr. on 8/21/2017 DENYING 52 Motion for Preliminary Injunction; DISSOLVING the Court's 51 Temporary Restraining Order in its entirety. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GENET HABTEMARIAM,

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Plaintiff,

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v.

No. 2:16-cv-01189-MCE-GGH

MEMORANDUM AND ORDER

VIDA CAPITAL GROUP, LLC; US
MORTGAGE RESOLUTION; PNC
BANK; NATIONAL ASSOCIATION;
and DOES 1 to 50, inclusive,
Defendants.

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In bringing this lawsuit, Plaintiff Genet Habtemariam alleges that her real property

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at 7 Shipman Court, Sacramento, California (the “subject property”) was wrongfully

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subjected to foreclosure proceedings on a Second Deed of Trust that allegedly had been

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cancelled some five years previously by the owner of the note, Defendant PNC Bank,

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N.A. Despite that cancellation, Plaintiff alleges the note was sold and ultimately

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assigned by PNC to Defendant Vida Capital Group who proceeded with the foreclosure.

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Plaintiff seeks to clear title to her property and further alleges various improprieties

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against both PNC and Vida. After the resolution of two motions to dismiss from PNC,

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Plaintiff filed a Second Amended Complaint (“SAC”) on July 25, 2017. ECF No. 44. The

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next day, she also filed a Motion for Temporary Restraining Order (“TRO”) in which she
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sought to enjoin an impending August 3, 2017 foreclosure sale by the holder of a

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promissory note secured by a first priority Deed of Trust by Defendant Gateway Bank,

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FSB (“Gateway DOT”). ECF No. 45.

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The Court granted that motion on July 31, 2017, and issued a TRO preventing

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Gateway from advertising, selling, transferring, conveying, foreclosing upon, evicting, or

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any other conduct adverse to Plaintiff regarding the subject property. The Court also

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directed Plaintiff to file a Motion for Preliminary Injunction, which was heard on August

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17, 2017. Michael Maloney and Ted Greene of the Law Offices of Ted A. Greene, Inc.

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appeared on behalf of Plaintiff; Patricia Lyon of French Lyon Tang appeared on behalf of

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Gateway; and Shannon Williams of the Law Offices of Michelle Ghidotti appeared

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telephonically on behalf of Vida. For the reasons below, Plaintiff’s Motion for Preliminary

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Injunction, ECF No. 52, is DENIED, and the Court’s July 31, 2017 temporary restraining

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order is dissolved in its entirety.

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STANDARD

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“A preliminary injunction is an extraordinary and drastic remedy.” Munaf v. Geren,

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553 U.S. 674, 690 (2008). “[T]he purpose of a preliminary injunction is to preserve the

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status quo between the parties pending a resolution of a case on the merits.”

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McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir. 2012). A plaintiff seeking a

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preliminary injunction must establish that he is (1) “likely to succeed on the merits;” (2)

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“likely to suffer irreparable harm in the absence of preliminary relief;” (3) “the balance of

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equities tips in his favor;” and (4) “an injunction is in the public interest.” Winter v. Nat.

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Res. Def. Council, 555 U.S. 7, 20 (2008). “If a plaintiff fails to meet its burden on any of

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the four requirements for injunctive relief, its request must be denied.” Sierra Forest

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Legacy v. Rey, 691 F. Supp. 2d 1204, 1207 (E.D. Cal. 2010) (citing Winter, 555 U.S. at

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22). “In each case, courts ‘must balance the competing claims of injury and must

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consider the effect on each party of the granting or withholding of the requested relief.’”
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Winter, 555 U.S. at 24 (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)).

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A district court should enter a preliminary injunction only “upon a clear showing that the

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plaintiff is entitled to such relief.” Winter, 555 U.S. at 22 (citing Mazurek v. Armstrong,

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520 U.S. 968, 972 (1997)).

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Alternatively, under the so-called sliding scale approach, as long as the plaintiff

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demonstrates the requisite likelihood of irreparable harm and shows that an injunction is

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in the public interest, a preliminary injunction can still issue so long as serious questions

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going to the merits are raised and the balance of hardships tips sharply in the plaintiffs’

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favor. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011)

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(concluding that the “serious questions” version of the sliding scale test for preliminary

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injunctions remains viable after Winter).

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DISCUSSION

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The TRO issued because “Plaintiff . . . raised serious questions concerning the

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rights and responsibilities of the parties.” Mem. & Order, ECF No. 51, at 5. Specifically,

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Plaintiff claimed that Vida was “required to service G[ateway]’s first mortgage.” Mot. for

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Prelim. Inj., at 5. At the hearing, Plaintiff indicated that she intended to assert Vida was

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required to pay the Gateway mortgage, but she conceded that she had no authority to

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support such a claim. Accordingly, Plaintiff has not shown that a preliminary injunction

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should issue against Vida compelling them to bring the Gateway mortgage current. Nor

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has Plaintiff provide any authority to undermine Gateway’s current right to enforce its

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rights under the Gateway DOT. Accordingly, Plaintiff has not shown that a preliminary

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injunction should issue against Gateway either.

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For these reasons, Plaintiff’s Motion for Preliminary Injunction, ECF No. 52, is

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DENIED, and the Court’s July 31, 2017 temporary restraining order is dissolved in its

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entirety.

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IT IS SO ORDERED.
Dated: August 21, 2017

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