Hrdina v. World Savings Bank, FSB et al
Filing
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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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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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