1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH G. WILKINSON; and KELLY No. 2:24-cv-01416-TLN-AC G. WILKINSON 12 Plaintiffs, 13 ORDER v. 14 PHH MORTGAGE CORPORATION; and 15 WESTERN PROGRESSIVE LLC, 16 Defendants. 17 18 This matter is before the Court on Plaintiffs Kenneth G. Wilkinson and Kelly G. 19 Wilkinson’s (“Plaintiffs”) Ex Parte Application for a Temporary Restraining Order (“TRO”). 20 (ECF No. 18.) No opposition has been filed by Defendants PHH Mortgage Corporation (“PHH”) 21 and Western Progressive LLC (collectively, “Defendants”). For the reasons set forth below, 22 Plaintiff’s application is DENIED. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 As an initial matter, Plaintiffs proceed in this action without counsel. As a result, the 3 Court experienced some difficulty in determining the factual allegations underlying Plaintiff’s 4 claims. However, Plaintiffs’ application for a TRO, when read in conjunction with documents in 5 the Court’s record, 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 an application for a TRO to enjoin the foreclosure sale of the Subject Property. (ECF 2 No. 4.) On May 22, 2024, the Court denied Plaintiffs’ application for a TRO. (ECF No. 5 at 5.) 3 At some point, Plaintiffs filed for Chapter 13 bankruptcy. (ECF No. 18-1 at 1.) Plaintiffs 4 allege that on September 16, 2024, their bankruptcy case was dismissed without Plaintiffs’ 5 knowledge. (Id.) Plaintiffs allege they did not know about the dismissal of their bankruptcy case 6 until September 26, 2024. (Id.) Plaintiffs further allege Defendants scheduled an auction of the 7 Subject Property to occur on September 26, 2024. (Id.) Plaintiffs are unaware if the sale of the 8 Subject Property in fact occurred. (ECF No. 18-2 at 1.) 9 On September 27, 2024, Plaintiff Kenneth G. Wilkinson (“Kenneth”) filed a Second 10 Amended Complaint. (ECF No. 17.) That same day, Plaintiffs filed the present application for a 11 TRO to invalidate any foreclosure sale that may have occurred on September 26, 2024, and enjoin 12 future foreclosure actions of the Subject Property. (ECF No. 18.) 13 II. STANDARD OF LAW 14 A TRO is an extraordinary remedy. The purpose of a TRO is to preserve the status quo 15 pending a fuller hearing. See Fed. R. Civ. P. 65. In general, “[t]emporary restraining orders are 16 governed by the same standard applicable to preliminary injunctions.” Aiello v. One West Bank, 17 No. 2:10-cv-0227-GEB-EFB, 2010 WL 406092, at *1 (E.D. Cal. Jan. 29, 2010) (internal citations 18 omitted); see also E.D. Cal. L.R. 231(a). 19 Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear 20 showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 21 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The 22 purpose of a preliminary injunction is merely to preserve the relative positions of the parties until 23 a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also 24 Costa Mesa City Emps. Ass’n v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012) (“The 25 purpose of such an order is to preserve the status quo until a final determination following a 26 trial.”); GoTo.com, Inc. v. Walt Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“The status quo 27 ante litem refers not simply to any situation before the filing of a lawsuit, but instead to the last 28 uncontested status which preceded the pending controversy.”). 1 “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed 2 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, 3 [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 4 Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test 5 to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 6 (9th Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court may 7 weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A 8 stronger showing on the balance of the hardships may support issuing a preliminary injunction 9 even where the plaintiff shows that there are “serious questions on the merits . . . so long as the 10 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the 11 public interest.” Id. Simply put, plaintiffs must demonstrate, “that [if] serious questions going to 12 the merits were raised [then] the balance of hardships [must] tip[ ] sharply” in [p]laintiffs’ favor 13 in order to succeed in a request for preliminary injunction. Id. at 1134–35. 14 III. ANALYSIS 15 A. The Second Amended Complaint 16 As a preliminary matter, the Court concludes the Second Amended Complaint filed on 17 September 27, 2024, is procedurally defective for two reasons. (ECF No. 17.) First, Rule 11 18 requires that pleadings be signed by the parties, and Kelly G. Wilkinson has not signed the 19 Second Amended Complaint. (ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH G. WILKINSON; and KELLY No. 2:24-cv-01416-TLN-AC G. WILKINSON 12 Plaintiffs, 13 ORDER v. 14 PHH MORTGAGE CORPORATION; and 15 WESTERN PROGRESSIVE LLC, 16 Defendants. 17 18 This matter is before the Court on Plaintiffs Kenneth G. Wilkinson and Kelly G. 19 Wilkinson’s (“Plaintiffs”) Ex Parte Application for a Temporary Restraining Order (“TRO”). 20 (ECF No. 18.) No opposition has been filed by Defendants PHH Mortgage Corporation (“PHH”) 21 and Western Progressive LLC (collectively, “Defendants”). For the reasons set forth below, 22 Plaintiff’s application is DENIED. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 As an initial matter, Plaintiffs proceed in this action without counsel. As a result, the 3 Court experienced some difficulty in determining the factual allegations underlying Plaintiff’s 4 claims. However, Plaintiffs’ application for a TRO, when read in conjunction with documents in 5 the Court’s record, 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 an application for a TRO to enjoin the foreclosure sale of the Subject Property. (ECF 2 No. 4.) On May 22, 2024, the Court denied Plaintiffs’ application for a TRO. (ECF No. 5 at 5.) 3 At some point, Plaintiffs filed for Chapter 13 bankruptcy. (ECF No. 18-1 at 1.) Plaintiffs 4 allege that on September 16, 2024, their bankruptcy case was dismissed without Plaintiffs’ 5 knowledge. (Id.) Plaintiffs allege they did not know about the dismissal of their bankruptcy case 6 until September 26, 2024. (Id.) Plaintiffs further allege Defendants scheduled an auction of the 7 Subject Property to occur on September 26, 2024. (Id.) Plaintiffs are unaware if the sale of the 8 Subject Property in fact occurred. (ECF No. 18-2 at 1.) 9 On September 27, 2024, Plaintiff Kenneth G. Wilkinson (“Kenneth”) filed a Second 10 Amended Complaint. (ECF No. 17.) That same day, Plaintiffs filed the present application for a 11 TRO to invalidate any foreclosure sale that may have occurred on September 26, 2024, and enjoin 12 future foreclosure actions of the Subject Property. (ECF No. 18.) 13 II. STANDARD OF LAW 14 A TRO is an extraordinary remedy. The purpose of a TRO is to preserve the status quo 15 pending a fuller hearing. See Fed. R. Civ. P. 65. In general, “[t]emporary restraining orders are 16 governed by the same standard applicable to preliminary injunctions.” Aiello v. One West Bank, 17 No. 2:10-cv-0227-GEB-EFB, 2010 WL 406092, at *1 (E.D. Cal. Jan. 29, 2010) (internal citations 18 omitted); see also E.D. Cal. L.R. 231(a). 19 Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear 20 showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 21 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The 22 purpose of a preliminary injunction is merely to preserve the relative positions of the parties until 23 a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also 24 Costa Mesa City Emps. Ass’n v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012) (“The 25 purpose of such an order is to preserve the status quo until a final determination following a 26 trial.”); GoTo.com, Inc. v. Walt Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“The status quo 27 ante litem refers not simply to any situation before the filing of a lawsuit, but instead to the last 28 uncontested status which preceded the pending controversy.”). 1 “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed 2 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, 3 [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 4 Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test 5 to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 6 (9th Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court may 7 weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A 8 stronger showing on the balance of the hardships may support issuing a preliminary injunction 9 even where the plaintiff shows that there are “serious questions on the merits . . . so long as the 10 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the 11 public interest.” Id. Simply put, plaintiffs must demonstrate, “that [if] serious questions going to 12 the merits were raised [then] the balance of hardships [must] tip[ ] sharply” in [p]laintiffs’ favor 13 in order to succeed in a request for preliminary injunction. Id. at 1134–35. 14 III. ANALYSIS 15 A. The Second Amended Complaint 16 As a preliminary matter, the Court concludes the Second Amended Complaint filed on 17 September 27, 2024, is procedurally defective for two reasons. (ECF No. 17.) First, Rule 11 18 requires that pleadings be signed by the parties, and Kelly G. Wilkinson has not signed the 19 Second Amended Complaint. (ECF No. 17 at 3.) Second, Rule 15 requires that a party seek the 20 opposing party’s consent or leave of court prior to amending its pleading if the party has already 21 amended its pleading once. See Fed. R. Civ. P. 15. Plaintiffs already filed a First Amended 22 Complaint on June 20, 2024. (ECF No. 10.) There is no indication Kenneth obtained opposing 23 party’s consent to file the Second Amended Complaint, nor has he sought leave to amend from 24 the Court. It also bears mentioning that the Second Amended Complaint inexplicably removes 25 almost all the factual allegations underlying Plaintiffs’ claims that were present in the First 26 Amended Complaint. 27 Accordingly, the Court STRIKES Plaintiff’s Second Amended Complaint as procedurally 28 defective. As such, this case proceeds on the operative First Amended Complaint. 1 B. Plaintiffs’ Application for a TRO 2 First, Plaintiffs request the Court declare the sale of the Subject Property, if it occurred on 3 September 26, 2024, void. (ECF No. 18 at 5). Plaintiffs argue they face immediate or irreparable 4 harm because the Subject Property is Plaintiffs’ primary residence and holds significant 5 sentimental value. (Id. at 2). 6 The Court finds the Plaintiffs have failed to demonstrate they are likely to suffer 7 irreparable harm in the absence of preliminary relief. Plaintiffs fail to provide any evidence about 8 the date of the sale. Rather, they speculate the sale occurred on September 26, 2024, which was 9 the day before they filed the instant application for a TRO. To the extent that the sale did occur, 10 Plaintiffs are not entitled to injunctive relief because Plaintiffs already suffered the anticipated 11 harm. Regardless of whether Defendant harmed Plaintiff in the past, Plaintiff must still show that 12 the threat of injury in the future is “certainly impending” or that it presents a “substantial risk” of 13 recurrence for the Court to hear its claim for prospective relief. Munns v. Kerry, No. 12–15969, 14 782 F.3d 402, 411–12 (9th Cir. 2015) 15 Second, Plaintiffs request the Court enjoin future foreclosure actions of the Subject 16 Property. To the extent there are any future foreclosure actions pending, Plaintiffs fail to provide 17 the Court with evidence about when such actions are scheduled to occur. Absent such evidence, 18 Plaintiffs’ vague reference to future foreclosure actions is too speculative to constitute imminent 19 harm. The Court also notes Plaintiffs sought the same relief on May 17, 2024, by way of an 20 application for a TRO.1 (ECF No. 4.) On May 22, 2024, the Court denied Plaintiffs’ application 21 for a TRO under Local Rule 231(b), concluding that the appropriate manner to seek the relief 22 requested was by way of a motion for preliminary injunction since they have been aware the 23 Subject Loan was in default since at least January 2024. (ECF No. 5 at 4.) For the same reasons 24 addressed in the Court’s order denying the prior application for a TRO, the Court again exercises 25 its discretion under Local Rule 231(b) to deny Plaintiffs’ application for last-minute relief as 26 Plaintiffs’ delay contradicts their allegations of irreparable injury. See Mammoth Specialty 27
28 1 Plaintiffs are cautioned against filing similarly deficient TROs in the future. 1 | Lodging, LLC v. We-Ka-Jassa Inv. Fund, LLC, No. CIV-S10-0864-LKK-JFM, 2010 WL 2 | 1539811, at *2 (E.D. Cal. Apr. 16, 2010) (denying a TRO application solely based on Local Rule 3 | 231(b) because “plaintiff did not file the motion until four business days before the scheduled 4 | foreclosure sale”); Avila v. Citi Mortg. Inc., No. 1:17-cv-1581-LJO-BAM, 2017 WL 5871473, at 5 | *1(E.D. Cal. Nov. 29, 2017) (finding it appropriate to deny plaintiff's TRO request under Local 6 | Rule 231(b) because plaintiff received ample notice of foreclosure sale and failed to “explain why 7 | he waited until the last possible moment to attempt to block the sale.”) 8 IV. CONCLUSION 9 For the reasons set forth above, Plaintiffs’ Ex Parte Application for Temporary 10 | Restraining Order, (ECF No. 18), is DENIED. 11 IT IS SO ORDERED. 12 | Date: September 30, 2024 13 14 7, IS TROY L. 16 CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28