“[A]t an irreducible 23 minimum the moving party must demonstrate a fair chance of success on the merits, or questions 24 serious enough to require litigation.” (quotation marks and citation omitted)
How later courts described this case
- “[A]t an irreducible 23 minimum the moving party must demonstrate a fair chance of success on the merits, or questions 24 serious enough to require litigation.” (quotation marks and citation omitted)
Written by the judges who cited it.
The opinion
1
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3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5 SAN JOSE DIVISION
6
7 FRANCESCO VITALE, et al., Case No. 23-cv-06019-BLF
8 Plaintiffs,
ORDER DENYING TEMPORARY
9 v. RESTRAINING ORDER
10 WELLS FARGO BANK NATIONAL [Re: ECF No. 5]
ASSOCIATION, et al.,
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Defendants.
12
13 On November 21, 2023, Plaintiffs Francesco and Frances Vitale, proceeding pro se, filed a
14 motion for a temporary restraining order, seeking to enjoin a foreclosure sale on the property
15 located at 4067 Cory Street, Suite 2, Soquel, California 95073 (“the Property”). ECF No. 5
16 (“Mot.”). On November 22, 2023, the Court ordered Plaintiffs to serve the motion on Defendants
17 Wells Fargo Bank, N.A., WT Capital Lender Services, and Browning Law Group and ordered
18 Defendants to file a response. ECF No. 8. On December 1, 2023, Defendant Wells Fargo Bank,
19 N.A. filed an opposition to the motion.1 ECF No. 10 (“Opp.”). The Court finds the motion
20 appropriate for disposition without oral argument. See Civ. L.R. 7-1(b).
21 For the reasons discussed below, Plaintiffs’ motion is DENIED WITHOUT PREJUDICE
22 to filing a noticed motion for a preliminary injunction.
23 I. BACKGROUND
24 Plaintiffs allege that on March 5, 2008, Francesco Vitale obtained a mortgage loan from
25 Wells Fargo, which was secured by a deed of trust to the Property. Mot. ¶ 21. The Property is a
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1 The Court granted the parties’ stipulation to extend time for Wells Fargo to file a more fulsome
1 commercial/office property. Id. ¶ 29. On February 1, 2023, Francesco Vitale defaulted on his
2 obligations. ECF No. 1-1 Ex. D. On June 28, 2023, Defendant WT Capital Lender Services
3 recorded and sent to Plaintiffs a notice of default and election to sell the Property. ECF No. 1-1
4 Ex. E; see also Mot. ¶ 20 (stating that “Defendants, and each of them intend to sell the property,
5 having given notice that sale of the property is imminent.”).
6 On November 21, 2023, Plaintiffs filed the complaint in this action, bringing causes of
7 action for (1) unjust enrichment; (2) “violations of the financial protections laws for commercial
8 loans”; (3) negligence; (4) quiet title; and (5) deprivations of rights under 42 U.S.C. § 1983. ECF
9 No. 1 (“Compl.”). Plaintiffs appear to allege that Defendants do not have title or a perfected
10 security interest in the deed of trust to the Property or standing to proceed with the foreclosure sale
11 because the deed of trust was not transferred or assigned consistent with governing law and that
12 Defendants committed fraud at the initiation of the mortgage loan. See id. ¶¶ 25–78.
13 II. LEGAL STANDARD
14 Courts use the same standard for issuing a temporary restraining order as that for issuing a
15 preliminary injunction. See Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017)
16 (“[T]he legal standards applicable to TROs and preliminary injunctions are substantially
17 identical.” (internal quotation marks and citation omitted)). An injunction is a matter of equitable
18 discretion and is “an extraordinary remedy that may only be awarded upon a clear showing that
19 the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555
20 U.S. 7, 22 (2008). A plaintiff seeking preliminary injunctive relief must establish “[1] that he is
21 likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of
22 preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in
23 the public interest.” Id. at 20. “[I]f a plaintiff can only show that there are serious questions going
24 to the merits – a lesser showing than likelihood of success on the merits – then a preliminary
25 injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor, and the
26 other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942
27 (9th Cir. 2014) (internal quotation marks and citations omitted).
III. DISCUSSION
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The Court finds that Plaintiffs have failed to meet their burden to demonstrate that they are
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likely to suffer irreparable harm and that they are likely to succeed on the merits.
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First, Plaintiffs’ alleged harm is not irreparable. Some courts have found that foreclosure
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may constitute irreparable harm when the subject property is a residential property. See, e.g., Fed.
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Trade Comm’n v. Kutzner, No. CV1600999BROAFMX, 2017 WL 5188334, at *8 (C.D. Cal. Mar.
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10, 2017); but see Penina Tagoia v. Wells Fargo Bank, N.A., No. 17-CV-06777-YGR, 2018 WL
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646643, at *3 (N.D. Cal. Jan. 31, 2018) (denying a motion for a TRO to enjoin a foreclosure on a
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residential property because the plaintiffs failed to show a likelihood of success on the merits).
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“However, where the facts demonstrate the property that is the subject of the foreclosure is not the
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moving party’s primary residence, and merely a rental property, courts have held there is no
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irreparable injury.” Field v. Genova Cap. Inc., No. 220CV09563ODWJCX, 2020 WL 6161450, at
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*3 (C.D. Cal. Oct. 21, 2020); see also Ribeiro v. Bank of Am., N.A., No. 2:12-CV-337 JCM PAL,
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2012 WL 727130, at *2 (D. Nev. Mar. 6, 2012) (similar). Here, it is undisputed that the Property
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is a commercial property in which Plaintiffs maintained an office. Mot. ¶ 29. Although Plaintiffs
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argue that the Property is “unique and non-fungible,” see id., they offer no facts that would
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suggest that their alleged injury is not compensable in money damages. Because Plaintiffs fail to
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do so, they have failed to meet their burden to show irreparable injury. Field, 2020 WL 6161450,
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at *4 (denying a motion for a temporary restraining order to enjoin a foreclosure on an investment
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property because the plaintiffs failed to show irreparable harm).
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Second, Plaintiffs have failed to show a likelihood of success on the merits or even serious
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questions going to the merits. Plaintiffs’ complaint is difficult to follow, but Plaintiffs’ five causes
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of action appear to be premised on the allegations that Defendants participated in a “transaction
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scheme,” which obscured or invalidated the chain of title to the deed of trust to the Property such
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that Defendants did not have legal authority to foreclose on the Property. See Compl. ¶¶ 25–78.
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The Court finds that these allegations are inadequate to show serious questions going to the merits,
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let alone to meet the higher likelihood of success on the merits requirement. Indeed, California
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courts and other courts in the Northern District have rejected substantially similar theories about a
1 defendant’s alleged lack of ownership in mortgage notes. See, e.g., Boyd v. GMAC Mortg. LLC,
2 No. C 11-5018 PSG, 2011 WL 6025906, at *4 (N.D. Cal. Dec. 5, 2011) (collecting cases);
3 Kimball v. BAC Home Loans Servicing, LP, No. 10-CV-05670-LHK, 2011 WL 577418, at *2
4 (N.D. Cal. Feb. 9, 2011) (holding that a plaintiff alleging a similar “securitization scheme” to
5 show that defendants did not have authority to initiate a foreclosure sale failed to show a
6 likelihood of success on the merits to obtain a TRO).
7 To the extent that Plaintiffs rely on allegations of fraud, the complaint fails to plead fraud
8 with particularity. “Parties must allege fraud with particularity under Federal Rule of Civil
9 Procedure 9(b), including the ‘who, what, when, where, and how of the misconduct charged . . . .’”
10 Coronavirus Rep. v. Apple, Inc., 85 F.4th 948, 958 (9th Cir. 2023) (quoting Depot, Inc. v. Caring
11 for Montanans, Inc., 915 F.3d 643, 668 (9th Cir. 2019)). Here, Plaintiffs allege that Defendants
12 engaged in fraud, but they fail to identify the circumstances constituting fraud such that
13 Defendants have notice of the particular misconduct alleged. See, e.g., Mot. ¶ 26 (“Affiants also
14 allege that Defendants committed fraud in the inducement and concealment at the initiation of the
15 loan.”); Compl. ¶ 59 (“Defendants failed to disclose.”); Compl. ¶ 83 (“These actions were
16 deceptive, fraudulent and self-serving.”); Compl. ¶ 106 (alleging that Defendants’ demand of
17 payment was fraudulent). In light of this pleading deficiency, Plaintiffs have failed to show
18 serious questions going to the merits or a likelihood of success on the merits with respect to any
19 allegations of fraud.
20 Having concluded that Plaintiffs have failed to establish irreparable harm or a likelihood of
21 success or serious questions going to the merits, the Court need not reach the remainder of the
22 Winter factors. See Pimentel v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) (“[A]t an irreducible
23 minimum the moving party must demonstrate a fair chance of success on the merits, or questions
24 serious enough to require litigation.” (quotation marks and citation omitted)).
25 //
26 //
27 //
IV. ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs Francesco and
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Frances Vitale’s Motion for a Temporary Restraining Order (ECF No. 5) is DENIED WITHOUT
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PREJUDICE to filing a noticed motion for a preliminary injunction.
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Dated: December 18, 2023
7 BETH LABSON FREEMAN
United States District Judge
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