Sanchez v. Wachovia Mortgage Corporation et al

Filing 26

ORDER by Judge Lucy H. Koh denying 22 Ex Parte Application. (lhklc2, COURT STAFF) (Filed on 4/18/2011)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

United States District Court
For the Northern District of California

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MARGARITA M. SANCHEZ,

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Plaintiff,
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v.
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WACHOVIA MORTGAGE CORPORATION, )
WELLS FARGO BANK, N.A., NDEX WEST, )
LLC, and Does 1-100, inclusive,
)
)
Defendants.
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)

Case No.: 11-CV-00959-LHK
ORDER DENYING RENEWED
REQUEST FOR TEMPORARY
RESTRAINING ORDER AND SETTING
DATE FOR DEFENDANTS’ RESPONSE
TO PLAINTIFF’S RESPOSNE TO OSC

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On April 14, 2011, this Court issued an order denying an ex parte Application for

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Temporary Restraining Order (TRO) seeking to enjoin a foreclosure sale set for April 15, 2011.

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See Dkt. No. 15. The Court found that Plaintiff had not articulated a likelihood of success on the

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merits of her claim, and that Plaintiff’s delay in bringing the application weighed against the

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fairness of granting her request. The Court also ordered Plaintiff to show cause why her case

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should not be dismissed for failure to prosecute in light of her failure to oppose Motions to Dismiss

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and Strike filed on March 22, 2011.

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Today, April 18, 2011, Plaintiff has filed a “renewed” ex parte Application for a TRO

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enjoining the sale, which she states has been re-scheduled for April 19, 2011 (tomorrow). In the

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renewed Application, Plaintiff does not raise any new, persuasive legal or factual bases indicating a

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likelihood of success on the merits and thus justifying a TRO. Because Plaintiff’s renewed

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Case No.: 11-CV-00959-LHK
ORDER DENYING RENEWED TEMPORARY RESTRAINING ORDER

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Application does not change the Court’s analysis, the Court DENIES Plaintiff’s request for a TRO

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for the same reasons set forth in the April 14, 2011 Order.1
Plaintiff has also filed a response to the Order to Show Cause. See Dkt. No. 25. Plaintiff

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titled this document “Response to OSC Re Dismissal of Action and Opposition to Mtn to Dismiss.”

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However, the Court noted in the April 14, 2011 Order that Plaintiff was not permitted to file a late

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Opposition to the Motion to Dismiss or the Motion to Strike without leave of Court. To the extent

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Plaintiff’s response advances arguments in opposition to those Motions, it is not properly before

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the Court. Plaintiff must seek leave to file Oppositions to those Motions. Plaintiff’s response to

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the OSC makes serious allegations that Defendants have falsified proofs of service in this matter

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United States District Court
For the Northern District of California

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and have otherwise misled Plaintiff’s counsel. Defendants may respond to Plaintiff’s response by

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April 26, 2011.

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IT IS SO ORDERED.

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Dated: April 18, 2011

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_________________________________
LUCY H. KOH
United States District Judge

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In addition, in the Application and the accompanying documents, Plaintiff states that she has not
received timely service of various documents. For example, Plaintiff states that she did not receive
Defendants’ Opposition to the first Application for TRO until April 15, 2011 (although it was
electronically filed April 14, 2011). Pursuant to General Order 45, all attorneys must sign up to
receive electronic service of all documents in this case. See G.O. 45, IX.B. It appears that
Defendants’ Opposition was e-mailed to Plaintiff’s counsel’s listed e-mail address on April 14,
2011.
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Case No.: 11-CV-00959-LHK
ORDER DENYING RENEWED TEMPORARY RESTRAINING ORDER