Opinion
TEMPORARY RESTRAINING ORDER AND ORDER SETTING BRIEFING SCHEDULE RE PRELIMINARY INJUNCTION Re: Dkt. No. 1
JAMES DONATO, District Judge.
Pro se plaintiff Kabita Choudhury has filed an ex parte motion for a temporary restraining order against Wells Fargo Bank, N.A., and Treena Berlinsky, who is apparently a Wells Fargo employee, to prevent a property she owns from being foreclosed upon. Choudhuri has included a proof of service stating that the complaint, notice of motion for a temporary restraining order, and other documents were mailed to Wells Fargo on August 6, 2015. See Dkt. No. 8 at 4.
The Court enters a temporary restraining order to preserve the status quo until a hearing on Choudhuri's motion for a preliminary injunction can be held. See Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438-39 (1974) (holding that a temporary restraining order "should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.").
Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Doing so here, it appears that Choudhuri is trying to stop the foreclosure of her property at 331 Richardson Way, Mill Valley, CA 94941, which is slated for August 11, 2015. See Affidavit of Kabita Choudhuri ("Choudhuri Affidavit") ¶ 2, Dkt. No. 4; Notice of Foreclosure, Dkt. No. 2 at ECF pp. 7-8. According to her complaint and affidavit, no notice of default was served on her before an agent of Wells Fargo's posted a notice of sale on her gate on July 20, 2015. Complaint at 12:29-31, Dkt. No. 1; Choudhury Affidavit ¶ 5. Choudhuri may be attempting to allege a violation of California Civil Code § 2924(a)(1), which states that, before a foreclosure sale may commence, "[t]he trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file... a notice of default." Given the fact that without a temporary restraining order, Choudhuri's property might be foreclosed upon without the chance for the Court to address the lawfulness of the foreclosure, there is a risk of imminent irreparable harm, and the Court will therefore grant a temporary restraining order as follows:
TEMPORARY RESTRAINING ORDER
Pending a hearing on the preliminary injunction, defendants Wells Fargo Bank, N.A., and Treena Berlinski, and their agents, assigns and transferees, are enjoined from proceeding with the foreclosure of the real property located at 331 Richardson Way, Mill Valley, CA 94941, encumbering or transferring any right, title or interest in that real property, or taking any other enforcement actions.
It is further ordered that:
1. Plaintiff Kabita Choudhuri will personally serve this Temporary Restraining Order on Wells Fargo Bank, N.A., and Treena Berlinski no later than noon on August 8, 2015. She must file proof of such service no later than August 10, 2015.
2. The Court sets a telephonic conference on August 10, 2015, at 11:00 a.m., to discuss the temporary restraining order. Prior to the call, the parties should contact CourtCall at (866) 582-6878 to schedule their appearance.
3. Wells Fargo's response to plaintiff's request for a preliminary injunction will be filed by August 10, 2015. Wells Fargo must address whether this Court has subject matter jurisdiction to hear the suit.
4. Any written reply by Choudhuri will be filed no later than August 12, 2015, and should also address whether this Court has jurisdiction.
5. A hearing on the preliminary injunction will be held on August 13, 2015, at 10:00 a.m. in Courtroom 11, Floor 19, Phillip Burton Federal Building, 450 Golden Gate Ave., San Francisco, CA 94102.
6. Pursuant to Rule 65(c) of the Federal Rules of Civil Procedure, the Court requires plaintiff Kabita Choudhuri to post a $500 bond for purposes of security by 1:00 p.m. on August 11, 2015, as a reasonable security for any costs or damages sustained by any party found to have been wrongfully restrained. The bond may be paid at the Clerk's Office on Floor 16 of the Phillip Burton Federal Building, 450 Golden Gate Ave., San Francisco, CA 94102.
7. Because plaintiff is pro se and will not receive electronic filing notices, the clerk will telephone plaintiff with notice of this order and mail a copy of this order to her.
8. The parties are encouraged to work together constructively in advance of the hearing, and may suggest a modified schedule for briefing and hearing by stipulation.
IT IS SO ORDERED.