(PS) Expose v. Fay Servicing, Inc. ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LINDA ROSE EXPOSE, No. 2:19-cv-01866-TLN-KJN 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR TRO 14 FAY SERVICING, INC., U.S. BANK NATIONAL ASSOCIATION LEGAL 15 TITLE, ATTORNEY LENDER SERVICES, DIANE WEIFENBACH, 16 ESQ., LAW OFFICES OF DIANE WEIFENBACH, 17 Defendants. 18 19 Plaintiff Linda Rose Expose (“Plaintiff”) initiated this action on September 17, 2019, 20 against Defendants Fay Servicing, Inc., U.S. Bank National Association Legal Title, Attorney 21 Lender Services, Diane Weifenbach, Esq., and the Law Offices of Diane Weifenbach 22 (“Defendants”), and filed an amended complaint on September 23, 2019 asserting claims for 23 wrongful foreclosure, intentional infliction of emotional distress, and violations of various 24 Federal laws, and seeking 5.5 million dollars in damages against Defendants. (ECF No. 1; ECF 25 No. 4 at 1.) Presently before the Court is Plaintiff’s ex parte motion for a temporary restraining 26 order (“TRO”), titled “Motion for Non-Judicial Restraining Order-Permanent Injunction and 27 Demand for Emergency Hearing Because of Pending Lawsuit,” filed September 18, 2019. (ECF 28 No. 3.) For the reasons set forth below, Plaintiff’s motion is DENIED. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 According to the documents attached to Plaintiff’s TRO, Plaintiff is the Trustor to a Deed 3 of Trust for the real property located at 5413 Pountsmonth Drive, Salida, California (“Subject 4 Property”). (ECF No. 3 at 19.) Plaintiff purchased the Subject Property on or around April 5, 5 2006, for approximately $400,000.00, by signing a promissory note. (ECF No. 4 at 9 ¶¶ 13.1, 6 13.6.) Plaintiff currently disputes the validity of that promissory note. (Id.) The Deed of Trust 7 was recorded on August 14, 2006. (ECF No. 3 at 19.) Plaintiff made monthly mortgage 8 payments of $1,281.75 to U.S. Bank National Association, who is not a party to this litigation, 9 from August 2006 until March 2010. (ECF No. 4 at 12 ¶ 15.1–15.2.) 10 In “late 2019,” Defendants Attorney Lender Services and Diane Weifenbach notified 11 Plaintiff she was behind on her mortgage payments and foreclosure proceedings were 12 commenced. (Id. at ¶ 15.3.) On or around August 22, 2019, Plaintiff contends she received a 13 Notice of Default from an unspecified attorney. (See id. at ¶ 15.4.) Plaintiff asserts she received 14 a Notice of Trustee’s sale approximately 30 days later. (Id.) The Notice of Trustee’s Sale, 15 recorded on August 15, 2019, states that Plaintiff was in default under the Deed of Trust, that the 16 estimated amount of unpaid balance and other charges pertaining to the Subject Property was 17 $462,973.33, and that a foreclosure sale was scheduled to occur at noon on September 18, 2019. 18 (ECF No. 3 at 15–17.) 19 Plaintiff filed her Motion for TRO in person on September 18, 2019. (ECF No. 3.) The 20 Clerk docketed the Motion on or around 2:58 p.m., nearly three hours after the foreclosure sale 21 was originally set to occur. (See id. (notice of electronic filing “entered at 2:58 PM PDT and filed 22 on 9/18/2019.”).) Plaintiff then filed an Amended Complaint on September 23, 2019, asserting 23 that the foreclosure sale date was postponed to September 25, 2019, due to a Chapter 13 24 bankruptcy case Plaintiff had previously filed. (ECF No. 4 at 12 ¶ 15.4.) 25 The gravamen of Plaintiff’s complaint against Defendants is that the foreclosure is void 26 because: (1) the defendant who initiated the foreclosure proceedings did not have standing to do 27 so because s/he is not licensed to practice law (see id. at 2 ¶ 1.1, 5–6); (2) the promissory note 28 relating to the Subject Property was sold during the securitization process (see id. at 6–7); and (3) 1 Defendants cannot produce any valid promissory note relating to the Deed of Trust for the 2 Subject Property (see id.). It also appears Plaintiff claims that she owns the Subject Property free 3 and clear. (See id. at 7; see also id. at 9 ¶ 13.2.) 4 Plaintiff’s Motion for TRO asserts Defendants’ eviction and foreclosure proceedings must 5 be enjoined or Plaintiff will suffer irreparable harm, presumably the loss of the Subject Property 6 through foreclosure sale and Plaintiff’s subsequent eviction from the Subject Property. (See ECF 7 No. 3 at 6 ¶¶ 24, 39.) 8 II. STANDARD OF LAW 9 A temporary restraining order is an extraordinary remedy. The purpose of a temporary 10 restraining order is to preserve the status quo pending a fuller hearing. See Fed. R. Civ. P. 65. In 11 general, “[t]emporary restraining orders are governed by the same standard applicable to 12 preliminary injunctions.” Aiello v. One West Bank, No. 2:10-cv-0227-GEB-EFB, 2010 WL 13 406092 at *1 (E.D. Cal. Jan. 29, 2010); see also L.R. 231(a). 14 Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear 15 showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 16 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The 17 purpose of a preliminary injunction is merely to preserve the relative positions of the parties until 18 a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); see 19 also Costa Mesa City Emp.’s Ass’n. v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012) 20 (“The purpose of such an order is to preserve the status quo until a final determination following a 21 trial.”); GoTo.com, Inc. v. Walt Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“The status quo 22 ante litem refers not simply to any situation before the filing of a lawsuit, but instead to the last 23 uncontested status which preceded the pending controversy.”). 24 “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed 25 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, 26 [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 27 Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test 28 to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 1 (9th Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court may 2 weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A 3 stronger showing on the balance of the hardships may support issuing a preliminary injunction 4 even where the plaintiff shows that there are “serious questions on the merits...so long as the 5 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the 6 public interest.” Id. Simply put, Plaintiff must demonstrate, “that [if] serious questions going to 7 the merits were raised [then] the balance of hardships [must] tip[ ] sharply in the plaintiff’s 8 favor,” in order to succeed in a request for preliminary injunction. Id. at 1134–35 (emphasis 9 added). 10 The Eastern District of California Local Rules impose additional requirements for a 11 motion for a temporary restraining order. First, the Court will consider whether the moving party 12 has unnecessarily delayed in seeking injunctive relief. See L.R. 231(b). Second, the moving 13 party must provide specific documents to the court in support of the requested temporary 14 restraining order. See L.R. 231(c). 15 III. ANALYSIS 16 A. Unnecessary Delay 17 Eastern District of California Local Rule 231(b) provides that “the Court will consider 18 whether the applicant could have sought relief by motion for preliminary injunction at an earlier 19 date without the necessity for seeking last-minute relief by motion for temporary restraining 20 order.” Should the Court find such a delay, the Court may deny the requested TRO on those 21 grounds alone. L.R. 231(b). 22 Here, the Court finds Plaintiff delayed in pursuing a TRO. Plaintiff was aware of the 23 September 18, 2019, foreclosure sale date when Defendants issued the Notice of Trustee’s Sale, 24 which was recorded on August 15, 2019. (ECF No. 3 at 15–17; see also ECF No. 1 at 2; ECF 25 No. 4 at 12 ¶ 15.4.) Moreover, Plaintiff received a Notice of Default that alerted her to potential 26 imminent foreclosure proceedings as early as August 22, 2019. (See id.) Yet Plaintiff did not 27 seek a TRO until September 18, 2019, the very day the foreclosure sale was initially set to 28 / / / 1 occur (see ECF No. 3), and a mere few days prior to the postponed sale date (see ECF No. 4 at 12 2 ¶ 15.4.)1 3 Plaintiff does not claim inadequate notice of the current sale date, nor does she claim she 4 was somehow prevented from seeking a preliminary injunction earlier. Indeed, it is unclear why 5 Plaintiff did not file a lawsuit challenging the validity of the foreclosure notice earlier. Plaintiff’s 6 filing of the instant lawsuit the day before her Motion for TRO does not excuse her failure to seek 7 a preliminary injunction sooner. See Mammoth Specialty Lodging, LLC v. We-Ka-Jassa Inv. 8 Fund, LLC, No. CIV-S10-0864-LKK-JFM, 2010 WL 1539811, at *2 (E.D. Cal. Apr. 16, 2010) 9 (denying a TRO application solely based on Local Rule 231(b) because “plaintiff did not file the 10 motion until four business days before the scheduled foreclosure sale”); Avila v. Citi Mortg. Inc., 11 No. 1:17-cv-1581-LJO-BAM, 2017 WL 5871473, at *1 (E.D. Cal. Nov. 29, 2017) (finding it 12 appropriate to deny plaintiff’s TRO request under Local Rule 231(b) because plaintiff received 13 ample notice of foreclosure sale and failed to “explain why he waited until the last possible 14 moment to attempt to block the sale.”) 15 For the foregoing reasons, the Court exercises its discretion under Local Rule 231(b) to 16 DENY Plaintiff’s Motion for TRO. 17 B. Procedural Deficiencies 18 In addition to Plaintiff’s delay, there are procedural grounds supporting the Court’s denial 19 of Plaintiff’s motion as well. Eastern District of California Local Rule 231(c) requires other 20 documents to be filed in conjunction with a motion for a TRO, including proposed orders and 21 bond information — documents Plaintiff failed to submit. However, even if the Court were to 22 overlook these defects, as Plaintiff is proceeding pro se, the Court cannot overlook all of the 23 defects in Plaintiff’s request. See L.R. 231(c). 24 Specifically, there is no indication from Plaintiff that she notified (or even attempted to 25 notify) Defendants of her intention to seek a TRO; nor does Plaintiff identify any reasons for her 26 1 The Court notes Plaintiff did not provide notice in her Motion for TRO that the 27 foreclosure date had been postponed from September 18, 2019 to September 25, 2019, but instead alleges the postponement for the first time in her Amended Complaint, filed on September 23, 28 2019. (See ECF No. 4; see also ECF Nos. 1 & 3.) 1 failure to provide such notice. See id. In addition, Plaintiff did not submit an affidavit outlining 2 the substantial injury that would befall her in the absence of a TRO. See id. Nor has Plaintiff 3 submitted a proposed order, which must contain provisions for issuing a bond, for scheduling the 4 filing of responsive papers, and for notifying the affected parties of their right to apply for an 5 order modifying or dissolving the TRO. See id. 6 These procedural failings alone are sufficient to justify denial of Plaintiff’s motion. See 7 Holcomb v. Cal. Bd. of Psychology, No. 215-cv-02154-KJM-CKD, 2015 WL 7430625, at *3 8 (E.D. Cal. Nov. 23, 2015) (indicating that the district court had previously “denied plaintiff’s 9 motion [for TRO and preliminary injunction] without prejudice for failure to provide the required 10 documents in compliance with Local Rule 231(c)”). And for this reason as well, Plaintiff’s 11 Motion for TRO is DENIED. 12 C. Likelihood of Success on the Merits 13 Finally, and most significantly, Plaintiff has failed to establish she is likely to succeed on 14 the merits of her underlying claims, nor has she raised serious questions going to the merits of 15 those claims. Specifically, Plaintiff contends the foreclosure is void and she owes no debt 16 because: (1) the defendant who initiated the foreclosure proceedings did not have standing to do 17 so because s/he is not licensed to practice law (see id. at 2 ¶ 1.1, 5–6); (2) the promissory note 18 relating to the Subject Property was sold during the securitization process (see id. at 6–7); and (3) 19 Defendants cannot produce any valid promissory note relating to the Deed of Trust for the 20 Subject Property (see id.). Based on these contentions, Plaintiff purports to assert claims for 21 wrongful foreclosure, violations of the Fair Debt Collection Practices Act (FDCPA), violations of 22 the Truth in Lending Act, breach of contract, violation of Federal trust and lien laws, slander of 23 title, slander of credit, and infliction of emotional distress. (ECF No. 4 at 16–17.) 24 None of these claims, however, are supported by any factual allegations in Plaintiff’s 25 complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“While detailed factual allegations 26 are not required, a complaint must have sufficient allegations to state a claim to relief that is 27 plausible on its face.”) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007) (internal 28 quotations omitted)); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (courts may not 1 “supply essential elements of the claim that were not initially pled.”). Instead, Plaintiff merely 2 recites statements of law pertaining to each of her claims, followed by the conclusory assertion 3 that unspecified Defendants violated them. Moreover, some of Plaintiff’s claims appear to fail on 4 the face of the Amended Complaint. For example, Plaintiff’s wrongful foreclosure claim is 5 premature, as the foreclosure sale date has not yet occurred. (See ECF No. 4 at 12 ¶ 15.4.) And 6 Plaintiff’s breach of contact claim fails because she fails to allege a legally-valid excuse for her 7 own non-performance. (See ECF No. 4 at 12 ¶ 15.2 (Plaintiff concedes she stopped making 8 payments on the promissory note in March 2010)); see also Bank of America, N.A. v. Roberts, 9 217 Cal. App. 4th 1386, 1392–93 (2013) (elements of claim). 10 In sum, Plaintiff’s unsupported arguments do not establish she is likely to succeed on the 11 merits of her claims, or even that there are serious questions going to the merits of those claims. 12 Accordingly, Plaintiff’s Motion for TRO must be DENIED for this additional reason. 13 IV. CONCLUSION 14 For the reasons set forth above, Plaintiffs’ ex parte Motion for TRO, titled “Motion for 15 Non-Judicial Restraining Order-Permanent Injunction and Demand for Emergency Hearing 16 Because of Pending Lawsuit” (ECF No. 3), is DENIED without prejudice. 17 IT IS SO ORDERED. 18 Dated: September 24, 2019 19 20 21 22 23 24 25 26 27 28