(PS) Wilkinson v. PHH Mortgage Corp. ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KENNETH G. WILKINSON; and KELLY No. 2:24-cv-01416-TLN-AC G. WILKINSON, 11 Plaintiffs, 12 MEMORANDUM AND ORDER v. 13 PHH MORTGAGE CORPORATION; and 14 WESTERN PROGRESSIVE LLC, 15 Defendants. 16 17 18 On May 17, 2024, Plaintiffs Kenneth G. Wilkinson and Kelly G. Wilkinson (collectively, 19 “Plaintiffs”) brought this action against Defendants PHH Mortgage Corporation (“PHH”) and 20 Western Progressive LLC (collectively, “Defendants”), alleging breach of their mortgage 21 agreement. (ECF No. 1.) Presently before the Court is Plaintiffs’ Ex Parte Application for 22 Temporary Restraining Order (“TRO”). (ECF No. 4.) For the reasons set forth below, Plaintiffs’ 23 application is DENIED. 24 /// 25 /// 26 /// 27 /// 28 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 As an initial matter, Plaintiffs proceed in this action without counsel. Given this, their 3 Complaint and application are often incoherent, and it is difficult for the Court to ascertain what 4 factual allegations underlie Plaintiffs’ claims. However, the Complaint and application, when 5 read in conjunction with Plaintiffs’ exhibits suggest the following allegations. 6 Lei Anne Wilkinson originally owned the property located at 3961 Nugget Lane, 7 Placerville, California 95667 (the “Subject Property”), but it is unclear when she purchased the 8 property. (ECF No. 4 at 2.) On December 9, 1999, Lei Anne Wilkinson took out a $136,000.00 9 mortgage with BYL Bank Group which was secured by the Subject Property (the “Subject 10 Loan”). (Id. at 192.) A deed, dated May 4, 2004, shows the Subject Property was held in joint 11 tenancy by Lei Anne Wilkinson and Kenneth G. Wilkinson as two unmarried people. (Id. at 86.) 12 Plaintiffs also allege Lei Anne and Kenneth Wilkinson’s son, Kelly Wilkinson, lived at the 13 Subject Property. (Id. at 84.) 14 On May 1, 2019, PHH acquired the Subject Loan. (Id. at 186.) At some time in 2020, a 15 loan modification was completed and the new principal balance on the Subject Loan was 16 $231,022.27. (Id. at 188.) On March 6, 2020, Lei Anne Wilkinson died without a will and 17 Plaintiffs allege the Subject Property passed to them. (Id. at 84.) On June 1, 2021, the Subject 18 Loan went into delinquency. (Id. at 247.) It is unclear from the record before the Court when or 19 if Defendants recorded a Notice of Default against Plaintiffs’ interest in the Subject Property, but 20 Plaintiffs allege they began corresponding with Defendants in January 2024 about repayment of 21 the outstanding balance on the Subject Loan. (Id. at 7.) Specifically, Plaintiffs allege they sent 22 Defendant “multiple conditional acceptances” to repay the Subject Loan, provided Defendants 23 send Plaintiffs “original documentation and evidence of consideration.” (Id.) Plaintiffs further 24 allege they did not begin repayment of the Subject Loan because Defendants never provided the 25 requested documentation. (Id.) 26 On April 1, 2024, Defendants issued a Notice of Trustee’s Sale with a sale date scheduled 27 for May 23, 2024. (Id. at 295.) On May 17, 2024, Plaintiffs initiated the instant action against 28 Defendants in this Court, alleging breach of contract. (ECF No. 1.) That same day, Plaintiffs 1 also filed the present application for a TRO to enjoin the foreclosure sale of the Subject Property. 2 (ECF No. 4.) Defendants did not file a response. 3 II. STANDARD OF LAW 4 A temporary restraining order is an extraordinary remedy. The purpose of a temporary 5 restraining order is to preserve the status quo pending a fuller hearing. See Fed. R. Civ. P. 65. In 6 general, “[t]emporary restraining orders are governed by the same standard applicable to 7 preliminary injunctions.” Aiello v. One West Bank, No. 2:10-cv-0227- GEB-EFB, 2010 WL 8 406092 at *1 (E.D. Cal. Jan. 29, 2010) (internal citations omitted); see also L.R. 231(a). 9 Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear 10 showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 11 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The 12 purpose of a preliminary injunction is merely to preserve the relative positions of the parties until 13 a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also 14 Costa Mesa City Emps. Ass’n v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012) (“The 15 purpose of such an order is to preserve the status quo until a final determination following a 16 trial.”); GoTo.com, Inc. v. Walt Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“The status quo 17 ante litem refers not simply to any situation before the filing of a lawsuit, but instead to the last 18 uncontested status which preceded the pending controversy.”). 19 “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed 20 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, 21 [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 22 Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test 23 to obtain a preliminary injunction. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 24 Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court may 25 weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A 26 stronger showing on the balance of the hardships may support issuing a preliminary injunction 27 even where the plaintiff shows that there are “serious questions on the merits . . . so long as the 28 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the 1 public interest.” Id. Simply put, Plaintiffs must demonstrate, “that [if] serious questions going to 2 the merits were raised [then] the balance of hardships [must] tip[ ] sharply” in Plaintiffs’ favor in 3 order to succeed in a request for preliminary injunction. Id. at 1134–35. 4 III. ANALYSIS 5 Plaintiffs filed the present application for a TRO to enjoin the foreclosure sale of the 6 Subject Property four business days before the scheduled sale on May 23, 2024. (ECF No. 4.) 7 Eastern District of California Local Rule 231(b) provides that “the Court will consider 8 whether the applicant could have sought relief by motion for preliminary injunction at an earlier 9 date without the necessity for seeking last-minute relief by motion for temporary restraining 10 order.” Should the Court find such a delay, the Court may deny the requested TRO on those 11 grounds alone. L.R. 231(b). 12 In the instant case, Plaintiffs were aware the Subject Loan was in default since at least 13 January 2024. (ECF No. 4 at 7.) Plaintiffs were also aware that Defendants issued a Notice of 14 Trustee’s Sale on April 1, 2024, fifty-three days before the scheduled sale date of May 23, 2024. 15 (Id. at 295.) Yet, Plaintiffs did not seek a TRO to enjoin the foreclosure sale until May 17, 2024, 16 only four business days before the scheduled sale date. (ECF No. 4.) 17 Plaintiffs do not claim they had inadequate notice of the scheduled sale date, nor do 18 Plaintiffs provide any explanation for why they did not seek a preliminary injunction earlier. For 19 these reasons, the Court exercises its discretion under Local Rule 231(b) to deny Plaintiffs’ 20 application for last-minute relief as Plaintiffs’ delay contradicts their allegations of irreparable 21 injury. See Mammoth Specialty Lodging, LLC v. We-Ka-Jassa Inv. Fund, LLC, No. CIV-S10- 22 0864-LKK-JFM, 2010 WL 1539811, at *2 (E.D. Cal. Apr. 16, 2010) (denying a TRO application 23 solely based on Local Rule 231(b) because “plaintiff did not file the motion until four business 24 days before the scheduled foreclosure sale”); Avila v. Citi Mortg. Inc., No. 1:17-cv-1581-LJO- 25 BAM, 2017 WL 5871473, at *1 (E.D. Cal. Nov. 29, 2017) (finding it appropriate to deny 26 plaintiff’s TRO request under Local Rule 231(b) because plaintiff received ample notice of 27 foreclosure sale and failed to “explain why he waited until the last possible moment to attempt to 28 block the sale.”) 1 Therefore, the Court DENIES Plaintiffs’ Application for TRO. (ECF No. 4.) 2 IV. CONCLUSION 3 For the reasons set forth above, Plaintiffs’ Ex Parte Application for Temporary 4 | Restraining Order, (ECF No. 4), is DENIED. 5 IT IS SO ORDERED. 6 | Date: May 22, 2024 7 { /) 8 “ : Lo ? Troy L. Nuhlep> 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28