Wasito v. Wells Fargo Bank, NA et al

Filing 10

ORDER Denying 4 Motion for TRO. Signed by Judge Roger T. Benitez on 7/27/2017. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JANAR WASITO,

Case No.: 3:17-cv-01507-BEN
Plaintiff,

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v.

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ORDER DENYING TEMPORARY
RESTRAINING ORDER

WELLS FARGO BANK, N.A.;
SPECIALIZED LOAN SERVICING
LLC; and DOES 1-100, inclusive,

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Defendants.

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On July 26, 2017, Plaintiff Janar Wasito, proceeding pro se, filed an ex parte

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motion for a temporary restraining order (“TRO”) to postpone the July 28, 2017

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foreclosure sale on his residence. He also submitted a request for judicial notice to

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support his ex parte motion. The Court has reviewed and considered both filings.

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The Court is familiar with the allegations in this case, as they are substantially the

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same as his allegations in Case No. 17-cv-1279. In that case, on July 6, 2017, the Court

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granted Plaintiff a temporary restraining order to delay the foreclosure sale on his house.

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The Court issued the TRO to preserve the status quo until a hearing could be held. The

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Court held a preliminary injunction hearing on July 13, 2017. After careful consideration

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of the parties’ arguments and the governing law, the Court denied Plaintiff’s request for a
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3:17-cv-01507-BEN

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preliminary injunction. The Court held that Plaintiff had not demonstrated a likelihood of

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success on the merits, that the balance of equities tips in his favor, or that the public

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interest favors enjoining the foreclosure. The same reasons lead this Court to conclude

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that a temporary restraining order should not issue in this case.

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I.

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Background
Plaintiff claims that Defendants Wells Fargo Bank, N.A. and Specialized Loan

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Servicing LLC, the previous and current servicers of his loan, respectively, breached a

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duty of care in processing and reviewing his applications for a loan modification.

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Plaintiff’s theory is that Wells Fargo improperly denied him a loan modification in 2013.

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Because he was allegedly improperly denied a loan modification in September 2013, he

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believes he overpaid his monthly mortgage payments until May 2015. At the preliminary

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injunction hearing, Plaintiff conceded he has not made his monthly mortgage payments

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since May 2015. He brings claims for negligence and negligent infliction of emotional

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distress.

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II.

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Legal Standard
A temporary restraining order is extraordinary relief, the underlying purpose of

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which is to preserve the status quo before a preliminary injunction hearing may be held.

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Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No.

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70 of Alameda Cnty., 415 U.S. 423, 439 (1974). For a TRO to issue, the movant must

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show either (1) a combination of likelihood of success on the merits and the possibility of

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irreparable harm, or (2) that serious questions going to the merits are raised and the

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balance of hardships tips sharply in favor of the moving party. Jones v. H.S.B.C. (USA),

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844 F. Supp. 2d 1099, 1099 (S.D. Cal. 2012) (citing Immigrant Assistance Project of Los

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Angeles Cnty. Fed’n of Labor v. INS, 306 F.3d 842, 873 (9th Cir. 2002). “[T]hese two

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formulations represent two points on a sliding scale in which the required degree of

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irreparable harm increases as the probability of success decreases.” Dep’t of Parks &

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Recreation of Cal. v. Bazaar del Mundo Inc., 448 F.3d 1118, 1123 (9th Cir. 2006). If the

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movant shows no chance of success, injunctive relief should not issue. Id. at 1124.
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III.

Discussion
Some California courts impose a duty of care on a lender or loan servicer in

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reviewing a loan for a potential modification. Alvarez v. BAC Home Loans Servicing,

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L.P., 228 Cal. App. 4th 941 (2014). But see Marques v. Wells Fargo Bank, N.A., No. 16-

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cv-03973, 2016 WL 5942329, at *6-7 (N.D. Cal. Oct. 13, 2016) (discussing split in

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authority regarding whether loan servicers owe borrowers a duty of care in processing

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modification applications and declining to impose a duty of care). However, even if this

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Court finds such a duty, Plaintiff has not demonstrated a likelihood of success or serious

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questions going to the merits of his claims. The Court heard Plaintiff’s arguments

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regarding the allegedly negligent 2013 loan modification denial at the preliminary

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injunction hearing and considered the evidence offered. Plaintiff appealed the denial of

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that modification, and his appeal was denied. (See Decl. of Specialized Loan Servicing,

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LLC ¶ 11, Case No. 17-cv-1279, Doc. No. 23). He also applied for and was denied other

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loan modifications over the years. (See id. ¶¶ 18, 30-32). Plaintiff fails to explain why

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these reviews were not adequate to correct the alleged error in the 2013 modification

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denial.

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Plaintiff has not made a mortgage payment in over two years. He has not made a

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credible offer of tender. He has not demonstrated a likelihood of success or serious

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questions going to the merits, nor has he shown why it would be equitable to postpone

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the foreclosure sale again.

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Plaintiff’s motion for a temporary restraining order is DENIED.

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IT IS SO ORDERED.

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Dated: July 27, 2017

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