Warren v. Wells Fargo & Company et al
Filing
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ORDER on Ex Parte Motion for Temporary Restraining Order & Request for Preliminary Injunction [Doc. No. 10 ]. Signed by Judge Cathy Ann Bencivengo on 5/2/2017. (All non-registered users served via U.S. Mail Service)(jjg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
MARK WARREN,
Case No.: 3:16-cv-2872-CAB-(NLS)
Plaintiff,
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v.
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ORDER ON EX PARTE MOTION
FOR TEMPORARY RESTRAINING
ORDER & REQUEST FOR
PRELIMINARY INJUNCTION
[Doc. No. 10]
WELLS FARGO & CO., WELLS
FARGO BANK, N.A., et al.
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Defendants.
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On January 27, 2017, Plaintiff filed an Ex Parte Application for a Temporary
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Restraining Order and Preliminary Injunction and Attorney Fees. [Doc. No. 10.] That
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same day, Judge Sammartino issued a briefing scheduling on the application. [Doc. No.
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11.] Consistent with the schedule, Defendants Wells Fargo Bank, N.A. and Wells Fargo
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Co. (collectively “Wells Fargo” or Defendants) filed their Response in Opposition on
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February 3, 2017, [Doc. No 13], and on February 10, 2017, Plaintiff filed his Reply [Doc.
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No. 16]. A hearing on Plaintiff’s Temporary Restraining Order (“TRO”) Application was
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scheduled for February 16, 2017 before Judge Sammartino. [Doc. No. 17.] Following a
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last minute recusal the TRO hearing was held before the undersigned. [Doc. No. 18.]
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At the February 16, 2017 hearing the parties discussed whether a TRO or
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Preliminary Injunction should issue. Wells Fargo argued in favor of a TRO, requested the
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opportunity to brief the Preliminary Injunction and asked the Court to set an Order to Show
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Cause on the Preliminary Injunction. Plaintiff’s position was that Defendants were seeking
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3:16-cv-2872-CAB-(NLS)
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a second bite of the apple, that they had ample time to prepare their evidence and failed to
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do so. The undersigned agreed to review the procedural background of the case to see if
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Defendants were on notice that the hearing was to be an actual preliminary injunction
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hearing instead of a TRO hearing and if an OSC for Preliminary Injunction needed to be
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set. Wells Fargo agreed to Plaintiff’s requested TRO and was enjoined from selling
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Plaintiff’s residence for 120 days.
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After review of the record, the Court finds that an OSC on the Preliminary Injunction
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would be appropriate. Due to the pending public auction of the property Defendants were
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only given seven days to brief both the TRO and Preliminary Injunction. While their
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Response in Opposition to Plaintiff’s motion focused on making legal arguments in support
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of their position that Plaintiff failed to satisfy the requirements for injunctive relief,
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Defendants’ opposition presented little if any evidence to dispute the facts
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Defendants specifically requested “sufficient time to brief the issues for the OSC [roughly
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three weeks] in order to prepare an opposition that will allow it to present a full evidentiary
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record showing that Wells Fargo has properly serviced the loan and that Plaintiff is in fact
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in default.” [Doc. No. 13:8-12.] Judge Sammartino did not address Defendants request.
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Furthermore, the Order setting the hearing references Plaintiff’s “Ex Parte Motion for
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Temporary Restraining Order” and set a “hearing on Plaintiff’s TRO Application” can be
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read to support Defendants contention that they were under the impression that they would
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get additional time to brief the Preliminary Injunction issue. [Doc. No. 17 1:27-2:1.]
However,
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Accordingly, the Court hereby ORDERS that a hearing on the Request for
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Preliminary Injunction will be held on June 8, 2017, at 10:00 a.m. in Courtroom 4C.
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Defendants shall have up to and including May 18, 2017 to file their response in opposition
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3:16-cv-2872-CAB-(NLS)
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to Plaintiff’s request for preliminary injunction. Plaintiff shall have up to and including
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June 1, 2017 to file his reply.
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It is SO ORDERED.
Dated: May 2, 2017
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3:16-cv-2872-CAB-(NLS)
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