Puente v. Pensco Company LLC

Filing 11

Order by Hon. William H. Orrick denying 5 Ex Parte Application for a Temporary Restraining Order. (jmdS, COURT STAFF) (Filed on 5/26/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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DESIREE G. PUENTE,
Plaintiff,
v.
PENSCO COMPANY LLC,
Defendant.

Case No. 15-cv-02292-WHO
ORDER DENYING EX PARTE
APPLICATION FOR A TEMPORARY
RESTRAINING ORDER
Re: Dkt. No. 5

Plaintiff Desiree G. Puente filed an ex parte application for a temporary restraining order

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on May 21, 2015, requesting that I enjoin and restrain defendant PENSCO Company LLC

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(“Pensco”) from conducting a Trustee’s Sale of the real property located at 4305 Elk Drive,

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Antioch, California 94531. See Dkt. No. 5. In response, Pensco argues that there is no federal

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jurisdiction in this case, that Pensco is not a real party interest and that Puente failed to join the

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necessary parties, and that Puente cannot prevail on the merits because she has not tendered the

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amount she claims that she owes. See Dkt. No. 10.

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Courts will only grant a temporary restraining order “where a plaintiff shows either (1) a

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combination of probable success on the merits and the possibility of irreparable injury, or (2) the

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existence of serious questions going to the merits and that the balance of hardships tips sharply in

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his favor.” DHL Worldwide Network N.V./S.A. v. Tradebeam, Inc., No. C04 5499 FMS, 2005 WL

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196529, at *1 (N.D. Cal. Jan. 28, 2005) (internal citations and quotations omitted).

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Here, Puente has not demonstrated a likelihood of success on the merits, or that serious

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questions are raised. She has not joined Terrence Macken or Jane Macken as a party to this action,

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even though the causes of action arise from a promise made by Terrence Macken to accept half of

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the amount due on Puente’s loan.1 Dkt. No. 5. at 2-3. Nor has she explained how Pensco is liable

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for the actions of Terrence Macken.
Importantly, Puente has not alleged that she has tendered the amount that she claims she

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owes on the loan. See Herrejon v. Ocwen Loan Servicing, LLC, 980 F. Supp. 2d 1186, 1197 (E.D.

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Cal. 2013) (“A defaulted borrower is required to allege tender of the amount of [the lender’s]

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secured indebtedness in order to maintain any cause of action for irregularity in the sale

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procedure.”) (internal citations and quotations omitted). She also has not provided any

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documentation to support her claim that Terrence Macken agreed to accept less than the full

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amount she owed.
Finally, it appears that this Court does not have jurisdiction over the matter. Puente claims

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United States District Court
Northern District of California

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that there is diversity jurisdiction because the amount in dispute is over $75,000.00, because she is

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a California resident, and because Pensco “was a New Hampshire limited liability company doing

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business as Pensco Trust Company and transacted business in the County of Contra Costa.” Dkt.

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No. 1 at 1. But Pensco claims, and submitted a supporting declaration stating, that its

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headquarters and principal place of business are in California. Dkt. No. 10 at 2; Dkt. No. 10-1 at 1-2.
For the above reasons, Plaintiff Puente has not established a likelihood of success on the

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merits of her claim, and her application for a temporary restraining order is DENIED.

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IT IS SO ORDERED.
Dated: May 26, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge

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According to Pensco, Mr. Macken is deceased and Mrs. Jane Macken received a distribution of
assets from his IRA to her IRA, including the note from Puente secured by the deed of trust. Dkt.
No. 10 at 3-4.
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