Tuck et al v. Wells Fargo Home Mortgage
Filing
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Order by Magistrate Judge Donna M. Ryu denying 40 Ex Parte Application for Temporary Restraining Order.(dmrlc1, COURT STAFF) (Filed on 10/11/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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ROBERT TUCK, et al.,
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Plaintiffs,
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v.
No. C 12-04002 DMR
ORDER DENYING PLAINTIFFS’
THIRD APPLICATION FOR
TEMPORARY RESTRAINING ORDER
WELLS FARGO HOME MORTGAGE, et
al.,
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Defendants.
___________________________________/
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On August 24, 2012, the court granted Plaintiffs Robert Tuck and Patricia Berkowitz’s ex
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parte application for a Temporary Restraining Order (“TRO”) and issued a TRO which barred
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Defendants Wells Fargo Bank, N.A. (“Wells Fargo”) and NDeX West LLC (“NDeX”), as well as
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their agents, assigns, and those acting in concert with Defendants, from selling, foreclosing, or
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otherwise alienating the property located at 6349 Greenridge Court, Martinez, California 94553
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(“the property”). [Docket No. 27.] The court ordered Defendants to show cause why a preliminary
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injunction should not issue and set a hearing on the order to show cause for September 7, 2012.
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Upon Wells Fargo’s unopposed request, the court continued the hearing on the order to show cause
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to October 11, 2012. [Docket No. 30.] In connection with its request to continue the hearing on the
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order to show cause, Wells Fargo represented that it had agreed to continue the foreclosure sale to a
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day after October 11, 2012, the date of the hearing. [Docket No. 28.] The parties subsequently
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stipulated to continue the hearing on the order to show cause to November 29, 2012. [Docket Nos.
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36, 37.] The TRO expired on September 7, 2012. [See Docket No. 27 at 6.]
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On October 9, 2012, Plaintiffs Robert Tuck and Patricia Berkowitz filed a second ex parte
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application for a TRO prohibiting the sale of the property. [Docket No. 38.] Essentially, Plaintiffs
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asked the court to extend the TRO that the court issued on August 24, 2012. As that TRO had
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expired on September 7, 2012, the court denied Plaintiffs’ request on the ground that there was no
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TRO in place to extend. [Docket No. 39.]
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Now before the court is Plaintiffs’ third ex parte application for a TRO enjoining the sale of
the property. [Docket No. 40.] Plaintiffs recently received notice that their mortgage loan was sold,
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For the Northern District of California
United States District Court
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and according to a document titled “Notice of Sale of Ownership of Mortgage Loan” received by
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Plaintiffs, the new owner of the home loan is U.S. Bank National Association as Trustee for
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Stanwich Mortgage Loan Trust Series 2012-9 (“U.S. Bank”). The new loan servicer is Carrington
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Mortgage Services, LLC (“Carrington”). (Decl. of Luis W. Camacho in Supp. of TRO (“Camacho
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Decl.”) ¶ 5, Ex. 3, Oct. 10, 2012.) Wells Fargo has confirmed that the loan “has been transferred”
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and informed Plaintiffs that “Wells Fargo lacks the ability to continue the foreclosure sale.”
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(Camacho Decl. ¶ 10; Ex. 6.) The property is scheduled to be sold on October 12, 2012. (Camacho
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Decl. ¶ 3, Ex. 1.)
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Plaintiffs seek a TRO enjoining the sale of the property “to keep the status quo until a
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meaningful settlement with the new servicer, Carrington Mortgage Services LLC can be obtained.”
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(Appl. for TRO 2.) In other words, Plaintiffs seek a TRO prohibiting any entity, including U.S.
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Bank and Carrington, the apparent owner and servicer of the loan, from selling the property.
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However, neither U.S. Bank nor Carrington is a party to this action. An application for preliminary
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relief requires Plaintiffs to “establish that [they are] likely to succeed on the merits, that [they are]
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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips
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in [their] favor, and that an injunction is in the public interest.” Winter v. Natural Resources
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Defense Council, 555 U.S. 7, 21-22 (2008). Plaintiffs have stated no causes of action against U.S.
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Bank or Carrington in their complaint, nor have they indicated what causes of action against those
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entities they would or could bring. Therefore, it is impossible for the court to evaluate whether
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Plaintiffs are likely to succeed on the merits. Wells Fargo has conceded that it is unable to continue
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the foreclosure sale, therefore a TRO enjoining the present Defendants would be meaningless.
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Further, Plaintiffs have not established that the court has jurisdiction over U.S. Bank or Carrington,
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see Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006) (a plaintiff bears the burden of
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proving that a court has personal jurisdiction over a defendant), nor whether the court would have
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subject matter jurisdiction over any possible claims against them. Accordingly, the application for a
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TRO must be denied.
S
onna
DONNA M. RYUD
Judge
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M. Ryu
United States Magistrate Judge
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R NIA
Dated: October 11, 2012
DERED
O OR
IT IS S
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For the Northern District of California
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FO
UNIT
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IT IS SO ORDERED.
NO
United States District Court
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