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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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.

ORDER DENYING MOTION TO
STAY FORECLOSURE

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WELLS FARGO & CO., WELLS
FARGO BANK, N.A., et al.

[Doc. No. 63]

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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 (“TRO”) and Preliminary Injunction to restrain Defendants from

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foreclosing on and selling the real property located at 5934 Portobelo Court in San Diego,

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California. [Doc. No. 10.] A hearing on Plaintiff’s TRO Application was held on February

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16, 2017 [Doc. No. 18.] Following the TRO hearing, the Court issued an Order to Show

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Cause on the Preliminary Injunction. [Doc. No. 30.] Defendants filed their response in

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opposition to Plaintiff’s request [Doc. No. 34] and Plaintiff filed his reply [Doc. No. 36].

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A hearing on the request was held on June 8, 2017. [Doc. No. 38.] On October 3, 2017,

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Plaintiff, aware that the Court would be issuing an order on the Preliminary Injunction in

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the near future, filed “Supplemental Facts in Support of the Court Granting an Injunction.”

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[Doc. No. 58.] Finally, on October 11, 2017, the Court denied Plaintiff’s ex parte

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application for a preliminary injunction. [Doc. No. 59.] A month later, on November 9,
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2017, Plaintiff appealed the Court’s denial of a preliminary injunction to the Ninth Circuit.

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[Doc. No. 62.] Plaintiff now moves for a stay of foreclosure until his appeal is resolved.

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“‘[T]he factors regulating the issuance of a stay’ [are]: ‘(1) whether the stay applicant

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has made a strong showing that he is likely to succeed on the merits; (2) whether the

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applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will

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substantially injure the other parties interested in the proceeding; and (4) where the public

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interest lies.’” Golden Gate Rest. Ass’n v. City & Cty. of San Francisco, 512 F.3d 1112,

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1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). These

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factors are almost identical to the factors applicable to the determination of whether to issue

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a preliminary injunction. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

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(2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to

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succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

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the public interest.”).

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reconsideration of the Court’s denial of Plaintiff’s request for a preliminary injunction, and

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simply restates the same arguments that did not persuade the Court the first time around.

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Indeed, Plaintiff dedicates most of his motion to attempts at distinguishing cases cited in

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the Court’s order and incorporates by reference the same arguments Plaintiff made in

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support of a preliminary injunction.

Thus, the instant motion is little more than a motion for

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As with his application for a preliminary injunction, the instant motion fails to

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demonstrate that Plaintiff is entitled to delay foreclosure of the Property any longer. The

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Court effectively already addressed the factors applicable to a stay pending appeal in detail

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in its order denying Plaintiff’s application for a preliminary injunction. In that order, the

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Court found that: (1) Plaintiff is not likely to succeed on the merits and prevent the sale of

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the Property; (2) Plaintiff will not suffer irreparable injury if foreclosure is not enjoined;

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(3) Defendant would not suffer serious hardship as a result of an injunction; and (4) the

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public interest is neutral with respect to an injunction. The Court’s reasoning for reaching

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these conclusions is equally applicable to Plaintiff’s motion for a stay, and the Court is not
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persuaded by any of Plaintiff’s arguments to reconsider these findings. If anything, further

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delay of foreclosure is even less warranted now because Plaintiff obtained at least some of

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the relief he sought insofar as Defendant completed its review of his application for a loan

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modification. Accordingly, because the applicable factors do not support issuance of a stay

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pending appeal, Plaintiff’s motion is DENIED.

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It is SO ORDERED.
Dated: December 8, 2017

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