Laine v. Wells Fargo Bank N.A

Filing 86

ORDER DENYING PLAINTIFF'S FOURTH MOTION FOR A PRELIMINARY INJUNCTION 81 (Illston, Susan) (Filed on 12/1/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEBRA L. LAINE,

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Case No. 13-cv-04109-SI

Plaintiff,
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v.
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WELLS FARGO BANK N.A,

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Defendant.

ORDER DENYING PLAINTIFF'S
FOURTH MOTION FOR A
PRELIMINARY INJUNCTION
Re: Dkt. No. 81

United States District Court
Northern District of California

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On October 30, 2014, plaintiff filed a fourth motion for a preliminary injunction.1

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Plaintiff's motion is scheduled for hearing on December 5, 2014. Pursuant to Civil Local Rule 7-

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1(b), the Court determines that this matter is suitable for resolution without oral argument and

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VACATES the hearing. For the reasons set forth below, the motion is DENIED.

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BACKGROUND

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On January 13, 2014, plaintiff filed a Chapter 13 petition and plan with the United States

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Bankruptcy Court. Wells Fargo moved to dismiss the petition, and on September 11, 2014, the

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Bankruptcy Court held a hearing on the motion to dismiss. During that hearing, counsel for Wells

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Fargo agreed, on behalf of Wells Fargo, to plaintiff's request to be given 90 days to sell her

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property, provided that plaintiff continued to make regular monthly mortgage payments as

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required by the plan and that at the end of the 90 days, Wells Fargo would be able to proceed with

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its right to foreclose. Dkt. 84-1 (Bailey Decl.) ¶ 4. The parties jointly submitted the proposed

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order, which the Bankruptcy Court adopted as its final order on September 23, 2014. Id. ¶ 5. The

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The Court denied plaintiff’s earlier motions for a temporary restraining order and/or preliminary
injunction in orders filed November 14, 2013, January 6, 2014, and January 9, 2014.

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Bankruptcy Court's order states that plaintiff is given 90 days (until December 2, 2014) to sell her

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property, and that at the conclusion of the 90 day period the bankruptcy case shall be dismissed

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rather than converted to another chapter proceeding. The order also states that "[t]he case is

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ordered dismissed as of December 2, 2014 . . . and Wells Fargo may pursue all its foreclosure and

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collection rights as of that date." Dkt. 80, Ex. 3.

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DISCUSSION

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Plaintiff seeks to enjoin Wells Fargo from proceeding with a trustee's sale after December

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2, 2014. Plaintiff states that she attempted to sell her house during the 90 day period, but that she

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was unsuccessful. Plaintiff states that she will keep trying to sell her house, but that she fears that

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United States District Court
Northern District of California

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it will be difficult to sell her house during the winter. Plaintiff asserts that sales activity is unlikely

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to significantly resume until late spring or early summer of 2015. Plaintiff asserts that if Wells

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Fargo is allowed to proceed with a trustee's sale, she will lose her equity in the house, whereas if

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plaintiff is granted additional time to try to sell the house she may be able to sell the property at a

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price sufficient to recover her equity and pay off her creditors.

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The standard test for preliminary injunctive relief requires establishment of four factors by

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a preponderance of the evidence: (i) likelihood of success on the merits; (ii) likelihood the moving

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party will suffer irreparable harm absent injunctive relief; (iii) that the balance of equities tips in

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the moving party's favor; and (iv) that an injunction is in the public interest. Winter v. Natural

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Resources Defense Council, 555 U.S. 7, 20 (2008). A preliminary injunction is an extraordinary

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remedy, never awarded as of right. Id. at 9.

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The Court concludes that plaintiff has not demonstrated that a preliminary injunction is

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warranted. Plaintiff has made no showing of likelihood of success on the merits of the claims

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alleged in the second amended complaint. The second amended complaint alleges a violation of

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RESPA based on defendant's failure to respond to plaintiff's qualified written request, as well as a

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claim for negligence and a violation of the UCL, both predicated on the RESPA violation. This

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Court has earlier found that plaintiff has not demonstrated a likelihood of success on the merits of

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the RESPA claim. Further, the Court agrees with defendant that plaintiff's fourth motion for a
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preliminary injunction is essentially a collateral attack on the bankruptcy court's order, and if

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plaintiff wishes to extend the stay granted by the bankruptcy court, plaintiff must seek that relief

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from the bankruptcy court.

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IT IS SO ORDERED.

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Dated: December 1, 2014
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SUSAN ILLSTON
United States District Judge

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United States District Court
Northern District of California

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