Deck v. Wells Fargo Bank, N.A. et al

Filing 4

ORDER signed by District Judge Morrison C. England, Jr on 2/6/2017 DENYING 3 Motion for Temporary Restraining Order. (Donati, J)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VERNON DECK, 12 13 14 15 16 17 18 19 20 21 22 No. 17-cv-00234-MCE-KJN PS Plaintiff, v. MEMORANDUM AND ORDER WELLS FARGO BANK, N.A., National Association, as Trustee for Option One Mortgage Loan Trust 2003-1, AssetBacked Certificates, Series 2003-1; OCWEN LOAN SERVICING, LLC, a Delaware limited liability company; POWER DEFAULT SERVICES, INC., a corporation; and all parties and all persons or entities with any claims to real property located at 1124 Hawthorne Loop, Roseville, California 95678, and Does 1–20, inclusively, Defendants. On February 2, 2017, Plaintiff Vernon Deck (“Plaintiff”) filed a Complaint (ECF 23 No. 1) and a Motion for Temporary Restraining Order (“TRO,” ECF No. 3). Plaintiff 24 seeks a TRO against Defendants Wells Fargo Bank, Ocwen Loan Servicing, and Power 25 Default Services, as well as any other parties with claims to the real property located at 26 1124 Hawthorne Loop in Roseville, California 95678 (collectively, “Defendants”) to 27 prevent the trustee’s sale of that property, currently set for February 10, 2017. For the 28 reasons set forth below, Plaintiff’s request for a TRO is DENIED. 1 1 Plaintiff claims that the sale of his primary residence is improper because he paid 2 off the note in its entirety sometime before the notice of default (“NOD”) was recorded in 3 2012. Plaintiff additionally claims that even if the note was not paid off, Defendants 4 made various errors in the handling of his mortgage and foreclosure proceedings. He 5 alleges those errors render any trustee sale improper. Most significantly, Plaintiff claims 6 that Defendants did not contact him prior to recording the NOD, promised in a 7 conversation not to foreclose on his property, and ignored multiple attempts by Plaintiff 8 to contact him regarding his mortgage status after he made what he understood to be 9 his final payment. 10 Even aside from the merits of Plaintiff’s allegations, multiple procedural flaws 11 prevent the Court from granting his requested TRO. Eastern District Local Rule 231 12 governs Temporary Restraining Orders. Rule 231(a) provides that “except in the most 13 extraordinary of circumstances, no temporary restraining order shall be granted in the 14 absence of actual notice to the affected party and/or counsel, by telephone or other 15 means, or a sufficient showing of efforts made to provide notice.” E.D. Cal. Local R. 16 231(a) (citing Fed. R. Civ. P. 65(b)). Rule 231(c) additionally requires the filing of, 17 among other things, “an affidavit detailing the notice or efforts to effect notice to the 18 affected parties or counsel or showing good cause why notice should not be given.” Id. 19 231(c)(5). 20 Furthermore, subsection (b) of Rule 231 states that “[i]n considering a motion for 21 a temporary restraining order, the Court will consider whether the applicant could have 22 sought relief by motion for preliminary injunction at an earlier date without the necessity 23 for seeking last minute relief by motion for temporary restraining order. Should the Court 24 find that the application unduly delayed in seeking injunctive relief, the Court may 25 conclude that the delay constitutes laches or contradicts the applicant’s allegations of 26 irreparable injury and may deny the motion solely on either ground.” Id. 231(b). 27 Finally, subsection (c) lists the documents to be filed by a party seeking a 28 temporary restraining order. Id. 231(c). Under that rule, “[n]o hearing on a temporary 2 1 restraining order will normally be set unless” certain documents are provided to the Court 2 and to the affected parties or their counsel. Id. Those documents are: (1) a complaint; 3 (2) a motion for a temporary restraining order; (3) a brief on all relevant legal issues 4 presented by the motion; (4) an affidavit in support of the existence of an irreparable 5 injury; (5) an affidavit detailing the notice or efforts to effect notice to the affected parties 6 or counsel or showing good cause why notice should not be given; (6) a proposed 7 temporary restraining order with a provision for a bond; (7) a proposed order with blanks 8 for fixing the time and date for hearing a motion for preliminary injunction, the date for 9 the filing of responsive papers, the amount of the bond, if any, and the date and hour of 10 issuance; and (8) where the TRO is requested ex parte, the proposed order shall further 11 notify the affected party of the right to apply to the Court for modification or dissolution on 12 two (2) days’ notice or such shorter notice as the Court may allow. Id. 13 In the present case, Plaintiff utterly fails to comply with the requirements of the 14 local rules. First, Plaintiff’s TRO Checklist is incomplete regarding notice to affected 15 parties, attempts to discuss alternatives to a TRO, and the possibility of stipulating to a 16 TRO. Indeed, there is no indication—by required affidavit or otherwise—that Plaintiff has 17 provided Defendants with actual notice, that he has attempted notice, or that there is 18 good cause that notice should not be given. Though Plaintiff brings this motion ex parte, 19 that does not excuse the lack of notice or attempt at notice. Plaintiff filed his request 20 February 2 and the trustee’s sale is scheduled for February 10. Even assuming there 21 was no delay on Plaintiff’s part in bringing this request on February 2, he had time to 22 provide notice to Defendants before the impending sale. Because there is no showing 23 that the present circumstances are so extraordinary that notice is not required, Plaintiff’s 24 request may be denied on this ground alone. 25 Second, though Plaintiff’s checklist indicates that there has not been undue delay 26 and that this action could not have been brought earlier, the Court is not so convinced. 27 According to Plaintiff, the faulty NOD was recorded December 20, 2012. Even assuming 28 Defendants failed to contact Plaintiff prior to recording the NOD, it would appear that 3 1 Plaintiff was on notice of the potential default as of that date. Though Plaintiff may have 2 taken steps sporadically in 2013 and 2014 to contact Defendants, a notice of trustee 3 sale was nevertheless recorded almost nine months ago on May 9, 2016. Moreover, the 4 original date of sale was June 16, 2016. See Pl’s Ex. 2. That sale was apparently 5 postponed at least once to December 12, 2016, and then again to the present date of 6 February 10, 2017. Id. It is not clear to the Court why Plaintiff waited until February 7 2017 to move for the emergency remedy of a TRO, and Plaintiff has provided no 8 explanation for his delay, which undermines the argument that any harm he may suffer is 9 imminent and irreparable. Because Plaintiff has not treated this situation as an 10 emergency over the preceding year, the Court will not now grant relief on an emergency 11 basis. 12 Finally, Plaintiff has provided the Court with many, but not all documents required 13 under Local Rule 231(c). Plaintiff has filed a Complaint, Motion for TRO, brief in support 14 of his motion, and a declaration supporting his request.1 Because Plaintiff has failed to 15 provide the Court with an affidavit or declaration addressing the notice requirement or 16 any proposed order, his request for a TRO also fails on that basis. 17 18 19 20 For all the foregoing reasons, Plaintiff’s Motion for a Temporary Restraining Order is hereby DENIED. IT IS SO ORDERED. DATED: February 6, 2017 21 22 _______________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 1 The declaration does not, however, address the lack of notice. 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?