Warren v. Wells Fargo & Company et al

Filing 73

ORDER Denying Motion to Stay Foreclosure [Doc. No. 63 ]. Signed by Judge Cathy Ann Bencivengo on 12/08/2017. (All non-registered users served via U.S. Mail Service)(ajs)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 SOUTHERN DISTRICT OF CALIFORNIA MARK WARREN, Case No.: 3:16-cv-2872-CAB-(NLS) Plaintiff, 11 12 v. ORDER DENYING MOTION TO STAY FORECLOSURE 13 WELLS FARGO & CO., WELLS FARGO BANK, N.A., et al. [Doc. No. 63] 14 15 Defendants. 16 17 On January 27, 2017, Plaintiff filed an Ex Parte Application for a Temporary 18 Restraining Order (“TRO”) and Preliminary Injunction to restrain Defendants from 19 foreclosing on and selling the real property located at 5934 Portobelo Court in San Diego, 20 California. [Doc. No. 10.] A hearing on Plaintiff’s TRO Application was held on February 21 16, 2017 [Doc. No. 18.] Following the TRO hearing, the Court issued an Order to Show 22 Cause on the Preliminary Injunction. [Doc. No. 30.] Defendants filed their response in 23 opposition to Plaintiff’s request [Doc. No. 34] and Plaintiff filed his reply [Doc. No. 36]. 24 A hearing on the request was held on June 8, 2017. [Doc. No. 38.] On October 3, 2017, 25 Plaintiff, aware that the Court would be issuing an order on the Preliminary Injunction in 26 the near future, filed “Supplemental Facts in Support of the Court Granting an Injunction.” 27 [Doc. No. 58.] Finally, on October 11, 2017, the Court denied Plaintiff’s ex parte 28 application for a preliminary injunction. [Doc. No. 59.] A month later, on November 9, 1 3:16-cv-2872-CAB-(NLS) 1 2017, Plaintiff appealed the Court’s denial of a preliminary injunction to the Ninth Circuit. 2 [Doc. No. 62.] Plaintiff now moves for a stay of foreclosure until his appeal is resolved. 3 “‘[T]he factors regulating the issuance of a stay’ [are]: ‘(1) whether the stay applicant 4 has made a strong showing that he is likely to succeed on the merits; (2) whether the 5 applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will 6 substantially injure the other parties interested in the proceeding; and (4) where the public 7 interest lies.’” Golden Gate Rest. Ass’n v. City & Cty. of San Francisco, 512 F.3d 1112, 8 1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). These 9 factors are almost identical to the factors applicable to the determination of whether to issue 10 a preliminary injunction. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 11 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to 12 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 13 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 14 the public interest.”). 15 reconsideration of the Court’s denial of Plaintiff’s request for a preliminary injunction, and 16 simply restates the same arguments that did not persuade the Court the first time around. 17 Indeed, Plaintiff dedicates most of his motion to attempts at distinguishing cases cited in 18 the Court’s order and incorporates by reference the same arguments Plaintiff made in 19 support of a preliminary injunction. Thus, the instant motion is little more than a motion for 20 As with his application for a preliminary injunction, the instant motion fails to 21 demonstrate that Plaintiff is entitled to delay foreclosure of the Property any longer. The 22 Court effectively already addressed the factors applicable to a stay pending appeal in detail 23 in its order denying Plaintiff’s application for a preliminary injunction. In that order, the 24 Court found that: (1) Plaintiff is not likely to succeed on the merits and prevent the sale of 25 the Property; (2) Plaintiff will not suffer irreparable injury if foreclosure is not enjoined; 26 (3) Defendant would not suffer serious hardship as a result of an injunction; and (4) the 27 public interest is neutral with respect to an injunction. The Court’s reasoning for reaching 28 these conclusions is equally applicable to Plaintiff’s motion for a stay, and the Court is not 2 3:16-cv-2872-CAB-(NLS) 1 persuaded by any of Plaintiff’s arguments to reconsider these findings. If anything, further 2 delay of foreclosure is even less warranted now because Plaintiff obtained at least some of 3 the relief he sought insofar as Defendant completed its review of his application for a loan 4 modification. Accordingly, because the applicable factors do not support issuance of a stay 5 pending appeal, Plaintiff’s motion is DENIED. 6 7 It is SO ORDERED. Dated: December 8, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:16-cv-2872-CAB-(NLS)

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