Tagoia et al v. Wells Fargo Bank, N.A. et al

Filing 29

ORDER by Judge Yvonne Gonzalez Rogers denying 23 Motion for TRO. (fsS, COURT STAFF) (Filed on 1/31/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PENINA TAGOIA, ET AL.,
Plaintiffs,

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CASE NO. 17-cv-06777-YGR

vs.
WELLS FARGO BANK, N.A., ET AL.,
Defendants.

ORDER DENYING PLAINTIFFS’ EX PARTE
MOTION FOR TEMPORARY RESTRAINING
ORDER AND ORDER TO SHOW CAUSE
Re: Dkt. No. 23

United States District Court
Northern District of California

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Plaintiffs Penina Tagoia and William Tagoia have filed an ex parte motion for a temporary

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restraining order and request for an order to show cause and set a hearing on a preliminary

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injunction to restrain defendants Wells Fargo Bank, N.A., Barrett Daffin Frappier Treder & Weiss,

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LLP, Breckenridge Property Fund 2016, LLC, Cheryl Lynn Asher, Erica Denise Jones, Edward

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Alan Treder, Manuel Loeza, Clayton Allen Goff, Brandye N. Foreman, Gregory Geiser, and Does

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1-100, inclusive (collectively, “defendants”), and their agents, assigns, and/or transferees from:

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[T]aking action having legal effect based on the trustee’s sale, including transfer of
title, recordation of any liens, proceeding with the pending unlawful detainer action
known as Case No. PS17-1120 in Contra Costa Superior Court entitled
BRECKENRIDGE PROPERTY FUND 2016, LLC v. Tagoia, or any other eviction
of Plaintiffs by the purported third party purchaser, BRECKENRIDGE
PROPERTY FUND 2016, LLC, ‘Breckenridge’ or any Defendant or successor-ininterest thereof, enforcement of the Trustee’s Deed Upon Sale recorded on
September 21, 2017, relating to the real property located at 4661 Palomino Way,
Antioch, CA 94531 (the ‘Subject Property’), encumbering or transferring any right,
title, or interest in the Property, or taking any other enforcement actions, until such
time as this Court in this Action determines whether the foreclosure was justified
under the facts and the law, whether there is any validity to any of the assignments,
the trusteeship allegedly undertaken by Defendant BARRETT DAFFIN
FRAPPIER TREDER & WEISS, LLP, whether a broken chain of title exists,
whether Breckenridge is a bona fide purchaser (or could be), and whether the
trustee’s sale is void.

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(Dkt. No 23 at 2 (“TRO Motion”).)1
Requests for temporary restraining orders are governed by the same general standards that

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govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co.,

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434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg lnt’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240

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F.3d 832, 839 n. 7 (9th Cir. 2001). Preliminary injunctive relief, whether in the form of a

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temporary restraining order or a preliminary injunction, is an “extraordinary and drastic remedy”

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that is never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-690 (2008) (internal

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citations omitted). In order to obtain such relief, plaintiffs must establish four factors: (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) an injunction is in the

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United States District Court
Northern District of California

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public interest. Winter v. Natural Res. Def. Council. Inc., 555 U.S. 7, 20 (2008).

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With respect to the success on the merits and balance of harms factors, courts will permit a

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plaintiff making a strong showing on one factor to offset a weaker showing on the other, so long

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as all four factors are established. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135

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(9th Cir. 2011). For example, if the balance of hardships tips sharply in plaintiffs’ favor, they

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may satisfy the likelihood of success factor by showing that there are at least “serious
questions” favoring the merits of their claim. Id. Nevertheless, a preliminary injunction is “an
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The Court notes that plaintiffs’ prayer for relief in their memorandum in support of their
TRO Motion is, without explanation, inconsistent with the TRO Motion itself in that the
memorandum references “the pending unlawful detainer action known as Case No. MS16-0755 in
Contra Costa Superior Court entitled U.S. Bank, N.A. v. Glasser.” (See Dkt. No. 24 at 10 (“Memo
ISO TRO Motion”).) In any event, this Court is without authority to enjoin the unlawful detainer
action. Namely, the Anti-Injunction Act states that a federal court “may not grant an injunction to
stay proceedings in a State court except as expressly authorized by Act of Congress, or whether
necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283.
The exceptions to the Anti-Injunction Act “must be construed narrowly and doubts as to the
propriety of a federal injunction against a state court proceeding should be resolved in favor of
permitting the state action to proceed.” Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987).
Although plaintiffs’ TRO Motion does not address the limitations on this Court’s authority
imposed by the Anti-Injunction Act, a number of district courts have held that a request for a
temporary restraining order enjoining a state court unlawful detainer action does not fall into one
of the exceptions listed in the Act. See, e.g., Michener v. Wells Fargo Home Mortg., No. C 122003 PJH, 2012 WL 3027538, at *4 (N.D. Cal. July 24, 2012); Diaz v. Nat’l City Bank, No. 12CV-1393-MMA (NLS), 2012 WL 2129916, at *2 (S.D. Cal. June 12, 2012); Sato v. Wachovia
Mortg., FSB, No. 5:11-CV-00810 EJD, 2012 WL 368423, at *2 (N.D. Cal. Feb. 3, 2012). Thus,
the injunctive relief plaintiffs seek with respect to the unlawful detainer action is prohibited by the
Anti-Injunction Act and does not fall within an exception.
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extraordinary remedy that may only be awarded upon a clear showing that plaintiff is entitled to

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such relief,” Winter, 555 U.S. at 22, and the moving party bears the burden of meeting all four

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Winter prongs. Cottrell, 632 F.3d at 1135; DISH Network Corp. v. FCC, 653 F.3d 771, 776–77

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(9th Cir. 2011).

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Here, plaintiffs have failed to establish a likelihood of success on the merits.2 Although

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plaintiffs’ complaint consists of thirteen causes of action (see Dkt. No. 1), their TRO Motion fails

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to specify on which claim plaintiffs bring their motion. It appears that the only claim upon which

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plaintiffs’ TRO Motion is based is their wrongful foreclosure claim. (See Memo ISO TRO

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Motion at 8 (referencing a “problematic sale leading to damages for wrongful foreclosure”); id.
(“The trustee’s sale was held improperly and constitutes a wrongful foreclosure.”).) Under

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United States District Court
Northern District of California

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California law, the elements of a wrongful foreclosure cause of action are: “(1) the trustee or

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mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a

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power of sale in a mortgage or deed of trust; (2) the party attacking the sale . . . was prejudiced or

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harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or

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mortgagor tendered the amount of the secured indebtedness or was excused from tendering.”

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Miles v. Deutsche Bank Nat’l Tr. Co., 236 Cal. App. 4th 394, 408–09 (2015) (internal quotation

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marks omitted). At minimum, plaintiffs have failed to establish the prejudice element of their

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wrongful foreclosure claim, as they have not demonstrated sufficiently any prejudice beyond the

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completion of the foreclosure.3 Having failed to establish at least one element of their wrongful

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In support of their opposition to plaintiffs’ TRO Motion, defendants Gregory Geiser and
Breckenridge ask that the Court take judicial notice of a number of documents. The documents
are purportedly: (a) a Deed of Trust recorded on July 31, 2006; (b) a Substitution of Trustee
recorded on February 10, 2016; (c) a Notice of Default recorded on March 2, 2016; (d) a Notice of
Trustee’s Sale recorded on August 2, 2017; and (e) a Trustee’s Deed Upon Sale recorded on
September 21, 2017. (See Dkt No. 28-2 (“Request for Judicial Notice”).) These appear to be the
same documents attached as exhibits to plaintiffs’ complaint. The Court finds that the documents
are true and correct copies of official public records, whose authenticity is capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be questioned. See
Fed. R. Evid. 201(b). Accordingly, the Court GRANTS defendants’ Request for Judicial Notice.
The Court will take notice of the existence of the documents and date on which they were
recorded but will not assume the truth of the facts contained therein.
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In a recent case from this district involving a wrongful foreclosure claim, the court
adopted “the approach endorsed by the weight of the published California Court of Appeal
decisions and applied by the Ninth Circuit.” Cardenas v. Caliber Home Loans, Inc., No. 17-CV3

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foreclosure claim, plaintiffs have not made a sufficient showing of a likelihood of success on the

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merits.4

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Moreover, plaintiffs’ TRO Motion does not establish that they are likely to suffer

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immediate irreparable harm in the absence of a temporary restraining order. Plaintiffs invoke the

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maxim that losing one’s home is irreparable harm. (See Memo ISO TRO Motion at 4.)

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(“[I]mmediate and irreparable injury will result, such that Plaintiffs will lose their home, and will

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be evicted from their home . . . .”).) “Although the loss of one’s home may constitute irreparable

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harm, in the absence of a likelihood of success on the merits, loss of property alone is not

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sufficient to obtain a TRO.” Jones v. H.S.B.C. (USA), 844 F. Supp. 2d 1099, 1101 (S.D. Cal.
2012); cf. Eshraghi v. Cal. Bank & Trust Corp., No. CV F 11-1733 LJO SKO, 2011 WL 4971956,

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United States District Court
Northern District of California

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at *10 (E.D. Cal. Oct. 19, 2011) (where plaintiff failed to establish that he was entitled to remain

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on the property, loss of the property was not irreparable injury). Here, defendants foreclosed upon

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plaintiffs’ property and now seek to evict them. While the Court is sympathetic to plaintiffs’

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circumstances, the pending TRO Motion does not establish that plaintiff is entitled to the

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04382-LHK, 2017 WL 5992125, at *8 (N.D. Cal. Dec. 4, 2017). Namely:
[I]n order to sufficiently allege prejudice, a borrower alleging that the foreclosing
party does not have the authority to foreclose due to a void assignment must also
allege additional harm stemming from the void assignment, like (1) that the void
assignment changed the borrower’s payment obligations; (2) that the void
assignment interfered in any manner with [the borrower’s] payment; or (3) that the
true owner of the loan—the entity that actually has the authority to foreclose—
would have refrained from foreclosure under the circumstances presented.
Id. (internal quotation marks omitted) (emphasis supplied).
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Plaintiffs baldly assert, “Defendants also violated the single point of contact provisions
in regard to failing to assign a single person to communicate with Plaintiffs regarding their
modification application.” (Memo ISO TRO Motion at 4.) To the extent California Civil Code
section 2923.7 serves as a basis for plaintiffs’ TRO Motion, which is dubious given the cursory
reference in their TRO Motion to “the single point of contact provisions” (id.), plaintiffs have
provided no information establishing how their alleged harms were caused by the failure to
provide a single point of contact. Their TRO Motion merely speculates that had defendants
observed the “single point of contact protections, Plaintiffs could have explored other options for
re-financing including partnering with a private investor, and avoided a sale.” (Memo ISO TRO
Motion at 4.) Absent information regarding the failure to comply with specific obligations laid out
in section 2923.7, the Court cannot find that plaintiffs have established a likelihood of success on
the merits as to their section 2923.7 claim.
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extraordinary and drastic remedy of injunctive relief. 5

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Accordingly, for the foregoing reasons, plaintiffs’ TRO Motion is DENIED.

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This Order terminates Docket Number 23.

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IT IS SO ORDERED.

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Dated: January 31, 2018
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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The Court finds that plaintiffs’ lack of diligence in filing their TRO Motion also militates
against injunctive relief. When plaintiffs filed their complaint on November 25, 2017, they could
have concurrently filed a properly noticed motion for a temporary restraining order. However,
they failed to do so without explanation, instead waiting over two months to file the instant
emergency application. See Ariel v. GMAC Mortg., LLC, C 12-04201 SBA, 2012 WL 5373388, at
*8 (N.D. Cal. Oct. 30, 2012) (“The Court finds that Plaintiffs’ unexplained delay in seeking
injunctive relief implies a lack of urgency and irreparable harm and militates against granting the
relief requested.”) That the parallel state unlawful detainer action is advancing towards summary
judgment is of no moment. (See Dkt. No. 25 at 3 (“Time is of the essence because a motion for
summary judgment is filed in the unlawful detainer proceeding and scheduled for hearing on
February 1, 2018 . . . .”) (Dailey Declaration ISO TRO Motion).) Indeed, as explained previously,
this Court is without authority to enjoin that action. (See supra n.1.)
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