Hrdina v. World Savings Bank, FSB et al

Filing 58

ORDER DENYING PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER AND VACATING HEARING by Hon. William Alsup denying 52 Motion for Preliminary Injunction.(whalc1, COURT STAFF) (Filed on 7/23/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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GEORGE HRDINA,

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For the Northern District of California

United States District Court

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No. C 11-05173 WHA

Plaintiff,
v.

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WACHOVIA MORTGAGE, a division of
Wells Fargo Bank, N.A., successor by
merger to Wells Fargo Bank, Southwest,
N.A., f/k/a Wachovia Mortgage, FSB, f/k/a
World Savings Bank, FSB; and DOES 1
through 6, inclusive,

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ORDER DENYING PLAINTIFF’S
MOTION FOR TEMPORARY
RESTRAINING ORDER AND
VACATING HEARING

Defendants.

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/

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In this foreclosure action, pro se plaintiff George Hrdina moves for a temporary

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restraining order to enjoin defendants from continuing with foreclosure proceedings. For the

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reasons stated below, plaintiff’s motion for a temporary restraining order is DENIED and the

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hearing scheduled for August 9 is VACATED.

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Plaintiff filed this action in August 2011 claiming fraud, breach of contract, and TILA

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violations. In January 2012, defendants’ motion to dismiss was granted in part and denied in

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part. Now, plaintiff’s remaining claims are for TILA violations for failure to clearly and

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conspicuously inform plaintiff of the interest rates upon which the payment schedule was based

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and the possibility of negative amortization.

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To prevail on a temporary restraining order, plaintiff must establish that (1) they are

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likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of

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preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction

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is in the public interest. Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009).

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Plaintiff has failed to meet his burden.

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Plaintiff has not demonstrated a likelihood of imminent harm. No notice of default has

notice of default is filed, California imposes waiting and redemption periods before foreclosure

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can proceed. See, e.g., Cal. Civ. Code §§ 2923.5(a)(1), 2924(a)(2). Plaintiff has not alleged that

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defendants are trying to physically evict him. Plaintiff’s sole evidence of future foreclosure is a

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For the Northern District of California

been recorded against plaintiff’s property (Holt Decl. ¶ 4, Exh. A). Moreover, even after a

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United States District Court

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“Notice of Intent to Foreclose” letter sent to plaintiff by defendants’ successor-in-interest, Wells

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Fargo Home Mortgage, on April 12, 2012. The letter notes that plaintiff is 13 months behind on

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his payments and that “the lender may seek foreclosure, which may result in the forced sale of

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the property” (Dkt. No. 53 Exh. C). The letter also lists options for loan modification and

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counseling. Again, this letter is not a notice of default, which must be filed before foreclosure

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proceedings can begin.

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Plaintiff has not demonstrated likely success on the merits. Plaintiff’s action is based on

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defendants’ alleged failure to inform plaintiff about negative amortization. However, in the

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record are agreement forms signed by plaintiff acknowledging the possibility of negative

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amortization and explaining the consequences (Dolan Decl. Exhs. C, D, E). Plaintiff has not

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argued that he did not understand the forms he signed.

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For the reasons stated above, plaintiff’s motion for a temporary restraining order
is DENIED and the hearing scheduled for August 9 is VACATED.

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IT IS SO ORDERED.

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Dated: July 23, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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