Sterling et al v. Deutsch Bank Americas

Filing 21

ORDER by Judge Claudia Wilken ORDER DENYING PLAINTIFFS 12 APPLICATION FOR TRO AND PRELIMINARY INJUNCTION(terminating 15 Motion) (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 3/18/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DARRICK D. STERLING, SPIRIT AND
SELF MINISTRIES, SYLVESTER
BRADFORD, and YVONNE TIJERINO,
Plaintiffs,

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United States District Court
For the Northern District of California

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v.
DEUTSCH BANK AMERICAS, MARILYN Y.
RODRIQUEZ, SPRE, INC., GMAC
MORTGAGE, CYPREXX CORPORATION,
WOLF FIRM, KAYO MANSON-TOMKIN,
ALAMEDA COUNTY SHERIFF, and
ALAMEDA COUNTY COUNSEL,

No. C 14-00827 CW
ORDER DENYING
PLAINTIFFS’
APPLICATION FOR
TRO AND
PRELIMINARY
INJUNCTION
(Re: Docket Nos.
12, 15)

Defendants.
________________________________/

Plaintiffs Darrick D. Sterling and Yvonne Tijerino move for a

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temporary restraining order (TRO) and preliminary injunction
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against Defendants Deutsche Bank Americas, et al. to “halt all

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state court unlawful detainer/claim of right possession hearings

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and proceedings scheduled for 03/13/2014 in Oakland Superior Court

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Dept. 31.”

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(Deutsche Bank)1 and The Wolf Firm oppose the motion.

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Defendants Deutsche Bank Trust Company Americas
The Court

DENIES Plaintiffs’ motion.

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To obtain either a TRO or a preliminary injunction, the
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moving party must demonstrate “(1) a likelihood of success on the
merits; (2) a significant threat of irreparable injury; (3) that

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Deutsche Bank was erroneously sued as Deutsch Bank
Americas.

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the balance of hardships favors the applicant; and (4) whether any

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public interest favors granting an injunction.”

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Ashcroft, 352 F.3d 1222, 1227 (9th Cir. 2003); see also Winter v.

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Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008).

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Alternatively, an injunction could issue where “the likelihood of

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Raich v.

success is such that serious questions going to the merits were

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raised and the balance of hardships tips sharply in plaintiff’s
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favor,” so long as the plaintiff demonstrates irreparable harm and

United States District Court
For the Northern District of California

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shows that the injunction is in the public interest.

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the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)

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(citation and internal quotation marks omitted).

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relief is “an extraordinary remedy that may only be awarded upon a

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Alliance for

Injunctive

clear showing that the plaintiff is entitled to such relief.”

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Winter, 555 U.S. at 22.
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As a preliminary matter, the Court explicitly ordered
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Plaintiff to serve notice of the application for TRO as soon as

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practicably possible, but no later than March 10, 2014 at 12:00

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PM.

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delivery on March 12, 2014.

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did not see the Court’s order until the morning of March 12,

Docket No. 13.

Plaintiff failed to do so, instead effecting
Although Plaintiffs argue that they

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2014,2 it is no excuse that Plaintiffs failed to monitor the

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Court’s docket when they themselves asked for the Court to review

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the application for a TRO on short deadline.

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Defendants filing a response late on the night of March 12, 2014.

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This resulted in

In any event, it is improper for a federal court to “grant an

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injunction to stay proceedings in a State court except as
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expressly authorized by Act of Congress, or where necessary in aid
of its jurisdiction, or to protect or effectuate its judgments.”

United States District Court
For the Northern District of California

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Younger v. Harris, 401 U.S. 37, 40 (1971) (quoting 28 U.S.C.

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§ 2283).

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such an exception.

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their rights under the following statutes were violated: (1) Truth

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Plaintiffs have not identified circumstances warranting
In their motion for a TRO, they allege that

in Lending Act (TILA) and Real Estate Settlement Procedures Act

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(RESPA), (2) the Americans with Disabilities Act (ADA), (3) the
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Fourth Amendment, (4) 42 U.S.C. § 1983, (5) quiet title, and

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(6) fraud.

Docket No. 12 at 3.

With all proper inferences in

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favor of Plaintiffs, this could be understood as urging the Court

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to enjoin state court proceedings in order to preserve its

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jurisdiction to resolve the federal claims asserted by Plaintiffs.

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See Docket No. 15 (Plaintiffs’ “motion that recently filed
proof of service not be deemed untimely, as well as the service on
defendants”). While the Court notes that Plaintiffs failed to
meet the deadline for service set in the Court’s March 7, 2014
order, and therefore DENIES Plaintiffs’ motion, the Court does not
base its decision denying the motion solely on Plaintiffs’ failure
to serve timely.
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The only irreparable harm identified by Plaintiffs is the

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upcoming hearing and lockout on the property in question, 6600

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Brann Street, Oakland, CA 94605.

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addresses those claims that are directly related to the

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foreclosure.

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Accordingly, the Court first

Defendants draw the Court’s attention to the fact

that Bradford had a loan in the amount of $368,000.00 on the

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property in question.

RJN, Ex. 1.3

In February 19, 2009, notice

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of default was filed against Bradford, who appeared to be in

United States District Court
For the Northern District of California

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default in the amount of $11,031.02.

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2008, a Notice of Trustee’s Sale was recorded, setting a sale date

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of June 18, 2008.

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Upon Sale, the trustee’s sale occurred on August 1, 2008 and the

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RJN, Ex. 3.

RJN, Ex. 2.

On May 23,

According to the Trustee’s Deed

property was conveyed by quitclaim deed to Deutsche Bank Trust

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Company Americas as Trustee.

RJN, Ex. 4; Docket No. 12 at 4.

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Defendants attempted to execute a lockout on at least two

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occasions, if not many more.

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Manson-Tompkins Decl.

Docket No. 12 at 5-6; see generally

Plaintiffs have attempted to remove to

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Defendants filed a request for judicial notice which
included deeds of trust and foreclosure documents. Docket No. 18.
Plaintiffs have not filed an opposition. The Court may take
judicial notice of facts that are not disputed and are easily
verified. Botelho v. U.S. Bank, N.A., 692 F. Supp. 2d 1174, 1177
(N.D. Cal. 2010). The Court therefore takes judicial notice of
certain publicly-filed documents, but will not accept as true the
facts described in the documents that are in dispute.
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federal court the same state court unlawful detainer action
regarding the same property at least four times.4

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Plaintiffs claim that, after the foreclosure sale, Defendants
wrongfully blocked off and segmented the property and prevented
handicapped and disabled residents from accessing the property,

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causing them harm.

Docket No. 12 at 4-5.

Plaintiffs further

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allege that in June 2011, this matter was challenged in state
court and Deutsche Bank was determined not to have “proper

United States District Court
For the Northern District of California

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standing to ownership or to initiate any action,” but Plaintiffs

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do not provide any case information or order so holding.

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at 4.

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Id.

Plaintiffs challenge the circumstances of the foreclosure
under TILA and RESPA.

TILA was enacted “to assure a meaningful

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disclosure of credit terms so that the consumer will be able to
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compare more readily the various credit terms available to him.”

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Yamamoto v. Bank of New York, 329 F.3d 1167, 1170 (9th Cir. 2003).

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“If the required disclosures are not made, the consumer may

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rescind.”

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settlement costs and ensure that consumers receive better

Id.

Congress enacted the RESPA to control real estate

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See RJN, Ex. 7 (Judge Seeborg’s August 9, 2013 order
remanding the unlawful detainer action for lack of jurisdiction,
noting it was “at least the fourth time” that Bradford had removed
the unlawful detainer action to federal court, and further
stating, “In the event Bradford does file a separate action in
this Court asserting affirmative claims against Deutsche Bank, it
will be randomly assigned to a judicial officer. Further attempts
to remove the unlawful detainer will continue to subject Bradford
to penalties for violating express court orders.”).
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information on the nature and costs of the settlement process so

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that they can be protected “from unnecessarily high settlement

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charges caused by certain abusive practices that have developed in

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some areas of the country.”

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1381 (N.D. Cal. 1994) aff'd, 77 F.3d 318 (9th Cir. 1996).

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Bloom v. Martin, 865 F. Supp. 1377,
“To

effectuate these objectives, RESPA requires advance disclosure of

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settlement costs, the elimination of kickbacks or referral fees,
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United States District Court
For the Northern District of California

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and a reduction of the amount that buyers are required to place in
escrow accounts for taxes and insurance.”

Id.

Regarding their quiet title and fraud claims, Plaintiffs
plead no facts supporting either of these claims.5
The facts alleged in support of the remaining causes of
actions are that there was “lack of due process in attempting to

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foreclose (incorrect names, no proper service, agents for bank
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named personal recipient upon check for receipt of loan proceeds,

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title never being transferred out of owner’s names post purported

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foreclosure).”

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insufficient to demonstrate a likelihood of success on the merits

Docket No. 12 at 6.

These bare contentions are

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Briosos v. Wells Fargo Bank, 2011 WL 1740100, at *4, *10
(N.D. Cal.) (fraud requires plaintiff to plead and prove facts
showing: “(1) lack of knowledge; (2) lack of means of obtaining
knowledge (in the exercise of reasonable diligence the facts could
not have been discovered at an earlier date); and (3) how and when
he did actually discover the fraud or mistake”; quiet title
requires: “a legal description and common designation of the
property; (2) the title of the plaintiff and its basis; (3) the
adverse claims to the plaintiff's title; (4) the date as of which
the determination is sought; and (5) a prayer that title is
quieted in the plaintiff.").
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under either statute.

Plaintiffs have not identified the specific

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code sections that were purportedly violated, nor have they set

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forth specific facts or documents to support their blanket

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assertion that any of the defects ever occurred.

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Because Plaintiffs have not demonstrated a likelihood that
the foreclosure and corresponding sale were faulty, they cannot

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show a likelihood that they are entitled to occupy the premises at
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issue.

Therefore, their allegations that the Wolf Firm, the

United States District Court
For the Northern District of California

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sheriff, and others wrongfully prevented Plaintiffs from entering

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the premises must fail.

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the sheriff’s department used excessive force, inflicted mental

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harm, and prevented disabled individuals from entering are vague

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Plaintiffs’ additional allegations that

and conclusory and do not demonstrate a likelihood of success of

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prevailing on their ADA, Fourth Amendment, and § 1983 claims.
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Because Plaintiffs have not demonstrated a likelihood of
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success on the merits on any of their claims, and have not even

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addressed balancing of the equities or the impact of granting an

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injunction on the public interest, the Court DENIES Plaintiffs’

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application for TRO and preliminary injunction.

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IT IS SO ORDERED.
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Dated:
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3/18/2014

CLAUDIA WILKEN
United States District Judge

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