Sims et al v. Wells Fargo Home Mortgage

Filing 19

ORDER DENYING PLAINTIFFS' REQUEST FOR A TEMPORARY RESTRAINING ORDER (Illston, Susan) (Filed on 1/17/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL SIMS and SUDIE SIMS,

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United States District Court
For the Northern District of California

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No. C 11-04768 SI

Plaintiffs,

ORDER DENYING PLAINTIFFS’
REQUEST FOR A TEMPORARY
RESTRAINING ORDER

v.
WELLS FARGO HOME MORTGAGE, and
DOES 1-10, inclusive,
Defendants.

/

On January 17, 2012, plaintiffs filed two briefs with the Court in this foreclosure-related action,

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one entitled “Action to Quiet Title” and the other “Plaintiffs’ Joint Case Management Conference
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Statement.” See Docs. 16 and 17. The briefs appear to include a request for a temporary restraining
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order (“TRO”), to prevent defendant Wells Fargo Home Mortgage (“Wells Fargo”) from proceeding
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with a scheduled Trustee’s Sale of their home on January 19, 2011. See Doc. 17, Ex. A. To the extent
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that the briefs include a request for a TRO, that request is DENIED.
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Temporary restraining orders are governed by the same standard applicable to preliminary
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injunctions. See Quiroga v. Chen, 735 F. Supp. 2d 1226, 1228 (D. Nev. 2010). A party seeking a
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preliminary injunction “must establish that he is likely to succeed on the merits, that he is likely to suffer
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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and
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that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, 129 S. Ct.
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365, 374 (2008).
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The plaintiffs have failed to show that they are likely to succeed on the merits here. The motion
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most closely resembling a request for a TRO - the “Joint Case Management Conference Statement” 26
alleges that “neither defendant can prove that they have standing to have brought this action, as the
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deed-of-trust was not properly recorded and they lack ownership of the underlying instrument allegedly
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secured by the real property.” See Doc. 16 at 1-2. Plaintiffs provide no documentary support for their

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first contention, that the deed was not properly recorded. Rather, in their “Action for Quiet Title,”

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plaintiffs state that “[a]s of this writing, Wells Fargo Home Mortgage is the nominal Deed of

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Trust/mortgagee-of-record in County of Santa Clara, California identifying the property described supra

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as the surety for a loan which another alleged entity made to Plaintiffs with the property described supra

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as collateral.” Doc. 17 at 2. Plaintiffs’ claims therefore appear contradictory. In any event, they have

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not persuaded the Court that they are likely to succeed on the merits of this claim.
Plaintiffs’ second argument is that Wells Fargo “lack[s] ownership of the underlying instrument

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allegedly secured by the real property.” See Doc. 16 at 2. The Court understands plaintiffs to be

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United States District Court
For the Northern District of California

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referring to the promissory note, as they allege in their “Action for Quiet Title” that Wells Fargo has

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“failed or refused to produce the original, unaltered promissory note . . . such as would provide a lawful

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basis for maintaining a Deed of Trust . . .” Doc. 17 at 3. However, initiation of lawful foreclosure in

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California does not necessarily require possession of the original promissory notes. See, e.g., Kolbe v.

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J.P. Morgan Chase Bank, CV 11-01532 SI (N.D. Cal. Oct. 13, 2011). California Civil Code § 2924

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includes several requirements for non-judicial foreclosure, but “[n]othing in [§ 2924] requires the entity

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initiating foreclosure to have physical possession of the note. [C]ourts have uniformly found that

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‘physical possession of the original promissory note is not a prerequisite to initiating foreclosure

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proceedings.’” Javaheri v. JPMorgan Chase Bank, 2011 WL 1131518 at *2 (C.D. Cal. 2011) (quoting

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Nguyen v. LaSalle Bank Nat’l Ass’n, 2009 WL 3297269 at *3 (C.D. Cal. 2009)). Plaintiffs’ second

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claim is therefore unavailing as well.

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Plaintiffs have not met their burden of showing a likelihood of success on the merits, a

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requirement of obtaining a TRO. Therefore, to the extent that they are requesting a TRO, that request

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is DENIED.

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IT IS SO ORDERED.
Dated: January 17, 2012

_______________________
SUSAN ILLSTON
United States District Judge

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