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

Filing 11

ORDER signed by District Judge Morrison C. England, Jr on 7/11/2017 GRANTING 7 Motion for Temporary Restraining Order. Defendants are ENJOINED from proceeding forward with the Trustee's sale scheduled for 7/12/2017 on the real property located at 124 W. 19th Street, Chico, CA 95928. Preliminary Injunction Hearing is set for 8/10/2017 at 02:00 PM in Courtroom 7 (MCE) before District Judge Morrison C. England Jr. Plaintiff's opening brief in support of the preliminary injunction shall be filed and served on or before 7/20/2017. Opposition due no later than 7/27/2017. Reply due no later than 8/3/2017. (Donati, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

BRUNO J. BICOCCA, an individual;
DIANNA BICOCCA, an individual

12
13
14
15
16

No. 2:17-cv-01158-MCE-CMK

Plaintiffs,
MEMORANDUM AND ORDER
v.
WELLS FARGO BANK N.A.; NBA
DEFAULT SERVICES, LLC; and
DOES 1 through 20, inclusive,
Defendants.

17
18
19

On May 1, 2017, Plaintiffs Bruno J. Bicocca and Dianna Bicocca (“Plaintiffs”) filed

20

this action in state court against Wells Fargo Bank N.A. and NBS Default Services, LLC

21

(“Defendants” unless otherwise noted). Plaintiffs’ Complaint alleges, inter alia, that

22

Defendants proceeded with foreclosure proceedings against Plaintiffs’ home in violation

23

of California’s Homeowner’s Bill of Rights, a 2012 legislative reform package which

24

made various changes to provisions in the California Civil Code pertaining to foreclosure

25

safeguards. On June 1, 2017, Defendants removed Plaintiffs’ lawsuit to this Court, citing

26

diversity of citizenship pursuant to 28 U.S.C. § 1441(b). Defendants subsequently filed a

27

Motion to Dismiss which is scheduled to be heard on August 10, 2017. Plaintiffs

28

responded, on June 22, 2017, by filing a Motion to Remand set for hearing on July 27,
1

1

2017, before filing on July 7, 2017, the Application for Temporary Restraining Order now

2

before the Court. That request seeks to enjoin a Trustee’s Sale set for July 12, 2017,

3

and as set forth below it is GRANTED.

4
5

BACKGROUND

6
7

In 2007, Plaintiffs financed their purchase of real property located in Chico,

8

California by taking out a residential mortgage with Wells Fargo’s predecessor in

9

interest, World Savings Bank FSB. After Plaintiffs apparently fell into arrears on their

10

mortgage, NBS, as current trustee, recorded a Notice of Default on January 13, 2017.

11

Thereafter, on April 17, 2017, NBS recorded a Notice of Trustee’s Sale initially

12

scheduled for May 8, 2017. The Trustee’s Sale has since been continued to July 12,

13

2017, and Plaintiffs now ask the Court to enjoin that sale on various grounds

14

encompassed within the HBOR, including but not limited to Wells Fargo’s alleged failure

15

to assess foreclosure prevention options as required by California Civil Code § 2923.55,

16

Wells Fargo’s alleged failure to provide a Single Point of Contact (“SPOC”) to speak with

17

Plaintiffs concerning their loan status as required by § 2923.7, and Wells Fargo’s alleged

18

failure to provide a full written notice identifying the reasons why their loan modification

19

request was denied pursuant to § 2923.6. Plaintiffs also allege unfair business practices

20

under California Business and Professions Code §17200 based on these contentions.

21
22

STANDARD

23
24

The purpose of a temporary restraining order (“TRO”) is to preserve the status

25

quo pending the complete briefing and thorough consideration contemplated by full

26

proceedings pursuant to a preliminary injunction. See Granny Goose Foods, Inc. v.

27

Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining orders “should be

28

restricted to serving their underlying purpose of preserving the status quo and preventing
2

1

irreparable harm just so long as is necessary to hold a hearing, and no longer”); see also

2

Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006); Dunn v.

3

Cate, No. CIV 08-873-NVW, 2010 WL 1558562, at *1 (E.D. Cal. April 19, 2010).
Issuance of a temporary restraining order, as a form of preliminary injunctive

4
5

relief, is an extraordinary remedy, and Plaintiffs have the burden of proving the propriety

6

of such a remedy. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In general,

7

the showing required for a temporary restraining order and a preliminary injunction are

8

the same. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839

9

n.7 (9th Cir. 2001).
The party requesting preliminary injunctive relief must show that “he is likely to

10
11

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

12

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

13

the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 20

14

(2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter).

15

The propriety of a TRO hinges on a significant threat of irreparable injury that must be

16

imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th

17

Cir. 1988).
Alternatively, under the so-called sliding scale approach, as long as the Plaintiffs

18
19

demonstrate the requisite likelihood of irreparable harm and show that an injunction is in

20

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

21

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

22

favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011)

23

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

24

injunctions remains viable after Winter).

25

///

26

///

27

///

28

///
3

ANALYSIS
1
2

In the absence of any response from Defendants, the Court must assume that

3

Plaintiffs’ allegations are well-founded and consequently that they have demonstrated a

4

likelihood of success on the merits sufficient to justify, at this time, a temporary

5

restraining order. Plaintiffs allege, for example, that Wells Fargo’s declaration that it had

6

assessed Plaintiff’s financial situation and explored options for avoiding foreclosure, as

7

required by California Civil Code § 2923.55(f), was false because no such contacts had

8

been made. The Court’s finding in that regard is nonetheless based only on the

9

evidence and allegations presented by Plaintiffs’ application and is made without the

10

Court having the benefit of hearing Defendants’ version of events. This Temporary

11

Restraining Order is thus being granted only to afford all parties an opportunity to be

12

heard prior to any Trustee’s Sale on Plaintiffs’ property.

13

Having determined a likelihood of success at this time based on the current

14

posture of this matter, the Court notes that Plaintiffs have also satisfied the remaining

15

factors for obtaining a TRO. They have adequately shown irreparable harm by alleging

16

they will lose their primary residence if Defendants’ Trustee’s Sale goes forward on July

17

12, 2017 as scheduled. In addition, the balance of equities tips sharply in Plaintiffs’ favor

18

as a TRO in this instance merely delays Defendants’ right to foreclose until all parties

19

have been given an opportunity to be heard on the merits of Plaintiffs’ allegations.1

20

Finally, an injunction is in the public’s interest as it is being issued to assure compliance

21

with state laws designed to protect the public.

22
CONCLUSION

23
24
25
26
27
28

For all the above reasons, the Court GRANTS Plaintiffs’ Application for
Temporary Restraining Order (ECF No. 7). Defendants are hereby enjoined from
1

Because the Court finds that the equities tip sharply in Plaintiffs’ favor and that Plaintiffs have at
a minimum raised serious questions as to the merits of their claim, a TRO is justified under the sliding
scale approach as well.

4

1

proceeding forward with the Trustee’s Sale on Plaintiffs’ property presently scheduled for

2

July 12, 2017.

3

A hearing on the issuance of a preliminary injunction is set for August 10, 2017, at

4

2:00 p.m. in Courtroom No. 7. That hearing will coincide with the hearings on the other

5

two motions presently pending before the Court so that they can be adjudicated

6

simultaneously. Defendants and their agents, servants, employees and representatives,

7

are ordered to show cause at the August 10, 2017 hearing why they should not be

8

enjoined from continuing to foreclose on Plaintiffs’ real property located at 124 W. 19th

9

St., Chico, California 95928 during the pendency of this lawsuit. In the meantime,

10

pending that hearing and determination of preliminary injunction, Defendants, along with

11

their officers, agents, employees, representatives and all persons acting in concert or

12

participating with it, are restrained from engaging in or performing directly or indirectly

13

any of the following acts: advertising, selling, transferring, conveying, foreclosing upon,

14

evicting or any other conduct adverse to Plaintiffs regarding their real property located at

15

124 W. 19th St., Chico, California 95928.

16

Plaintiffs’ opening brief in support of preliminary injunction shall be filed and

17

served on or before July 20, 2017. Opposition by Defendants, if any, must be submitted

18

not later than July 27, 2017, and Plaintiffs’ deadline for filing a reply is August 3, 2017.

19

Although it appears that Plaintiffs provided Defendants with notice of their request

20

for a TRO, because Defendants did not have an opportunity to respond prior to issuance

21

of the TRO, the affected parties may apply to the Court for modifications/dissolution of

22

this temporary restraining order on two (2) days’ notice or upon such shorter notice as

23

the Court may allow. See Local Rule 231(c)(8), Fed. R. Civ. P. 65(b). No bond shall be

24

required.

25
26

IT IS SO ORDERED.
Dated: July 11, 2017

27
28
5