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

Filing 39

ORDER DENYING APPLICATION FOR Temporary Restraining Order. Signed by Judge JEFFREY S. WHITE on 3/28/12. (jjoS, COURT STAFF) (Filed on 3/28/2012)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

DAVID A. THOMAS,

11
For the Northern District of California

United States District Court

10

12
13

Plaintiff,

No. C 11-04420 JSW

v.
WELLS FARGO BANK, N.A., et al.,
Defendants.
/

ORDER DENYING
APPLICATION FOR
TEMPORARY RESTRAINING
ORDER

14
15

Now before the Court for consideration is the ex parte application for a temporary

16

restraining order (“TRO”) filed by Plaintiff David A. Thomas (“Plaintiff”). The Court has

17

considered the Plaintiff’s papers, relevant legal authority, and the record in this case, and it

18

finds the matter suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). For

19

the reasons set forth in the remainder of this Order, Plaintiff’s application is DENIED.

20

Plaintiff seeks to have this Court enjoin the unlawful detainer action currently pending

21

in state court. In the action before this Court, Plaintiff seeks to cancel the instruments relating

22

to Defendants’ foreclosure on the property at issue and to set aside the trustee sale. In addition,

23

Plaintiff brings a claim for wrongful foreclosure, an accounting and for declaratory relief. Upon

24

a motion to dismiss filed by Defendant Wells Fargo Bank, N.A (“Wells Fargo”), as the

25

successor in interest to Wachovia Mortgage FSB, the Court dismissed Plaintiff’s claims with

26

leave to amend. Wells Fargo argued, and the Court agreed, that all of Plaintiff’s claims were

27

preempted by the Home Owners Loan Act (“HOLA”). The Court noted that Plaintiff’s claims

28

were all premised on his contention that Wells Fargo was not the lender or beneficiary of the

1

loan because its predecessor, Wachovia, sold the note into a mortgage backed securities pool.

2

Such claims are preempted by HOLA because they fall squarely within the specific preemption

3

of state claims that deal with “investment” in mortgages as set forth in the regulations

4

promulgated under HOLA in 12 C.F.R. § 560.2(b)(10).

5

Although the Court provided Plaintiff with leave to amend to allege claims which are

6

not preempted by HOLA, Plaintiff’s claims are still premised on his contention that Wells Fargo

7

was not the lender or beneficiary of the loan because its predecessor, Wachovia, sold the note

8

into a mortgage backed securities pool. Accordingly, Plaintiff’s claims still appear to be

9

preempted.
In order to obtain a temporary restraining order or preliminary injunctive relief, Plaintiff

11
For the Northern District of California

United States District Court

10

“must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable

12

harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that

13

an injunction is in the public interest.” Winter v. Natural Resources Defense Council, 555 U.S.

14

7, 129 S. Ct. 365, 374 (2008) (citations omitted). The Winter court also noted that because

15

injunctive relief is “an extraordinary remedy,” it “may only be awarded upon a clear showing

16

that the plaintiff is entitled to such relief.” 129 S.Ct. at 375-76 (citing Mazurek v. Armstrong,

17

520 U.S. 968, 972 (1997) (per curiam)). Thus “[i]n each case, courts ‘must balance the

18

competing claims of injury and must consider the effect on each party of the granting or

19

withholding of the requested relief.’” Id. at 376 (citing Amoco Production Co. v. Gambell, 480

20

U.S. 531, 542 (1987)). On an ex parte motion for a TRO, the moving plaintiff must allege

21

“specific facts in an affidavit or a verified complaint clearly show[ing] that immediate and

22

irreparable injury, loss, or damage will result to the movant before the adverse party can be

23

heard in opposition.” Fed. R. Civ. Proc. 65(b)(1)(A).

24

Following Winter, courts in the Ninth Circuit may apply a sliding scale test when there

25

is a lesser showing of likelihood of success that amount to “serious questions on the merits” and

26

the balance of hardships tips strongly in the plaintiff’s favor, as long as the plaintiff satisfies the

27

other two prongs under Winter by showing that there is a likelihood of irreparable injury and

28
2

1

that the injunction is in the public interest. Alliance For The Wild Rockies v. Cottrell, 632 F.3d

2

1127, 1134 (9th Cir. 2011).

3
4

Because all of Plaintiff’s claims against Wells Fargo appear to be preempted, Plaintiff

5

has not demonstrated a likelihood of success on the merits. Moreover, even if Plaintiff had

6

demonstrated a likelihood of success on the merits, the Court is precluded from issuing his

7

requested TRO for another, independent reason. Pursuant to the Anti-Injunction Act, a federal

8

court “may not grant an injunction to stay proceedings in a State court except as expressly

9

authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.” 28 U.S.C. § 2283. “The limitations expressed in the Anti-Injunction

11
For the Northern District of California

United States District Court

10

Act ‘rest[] on the fundamental constitutional independence of the States and their courts,’

12

Atlantic Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 287 (1970), and

13

reflect ‘Congress’ considered judgment as to how to balance the tensions inherent in such a

14

system,’ Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988).” Sandpiper Village

15

Condo. Ass’n v. Louisiana-Pacific Corp., 428 F.3d 831, 842 (9th Cir. 2005). “[T]he Act is

16

designed to prevent friction between federal and state courts by barring federal intervention in

17

all but he narrowest of circumstances.” Id. Although there are exceptions to the Anti-

18

Injunction Act, “the court cannot discern ... how the request to simply stay the unlawful detainer

19

action falls into one of the exceptions listed in the Act.” Sato v. Wachovia Mortgage, FSB,

20

2012 WL 368423, *2 (N.D. Cal. Feb. 3, 2012). Accordingly, the Court DENIES Plaintiff’s

21

application for a TRO.

22
23

IT IS SO ORDERED.
Dated: March 28, 2012
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

24
25
26
27
28
3

1

UNITED STATES DISTRICT COURT

2

FOR THE

3

NORTHERN DISTRICT OF CALIFORNIA

4
5
THOMAS et al,

Case Number: CV11-04420 JSW

6
Plaintiff,

CERTIFICATE OF SERVICE

7
v.
8
WELLS FARGO BANK, N.A. et al,
9
Defendant.

/

11
For the Northern District of California

United States District Court

10

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
12 District Court, Northern District of California.
13 That on March 28, 2012, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
14 listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
15
16
17 David A. Thomas
19500 Mount Jasper Drive
18 Castro Valley, CA 94552
19
20 Dated: March 28, 2012
21
22
23
24
25
26
27
28

Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk