Kwesi Hutchful v. Wells Fargo Bank, N.A. , 471 F. App'x 693 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KWESI HUTCHFUL, No. 11-55664
Plaintiff - Appellant, D.C. No. 2:11-cv-02856-DSF-JC
v.
MEMORANDUM*
WELLS FARGO BANK, N.A.; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued February 7, 2012 and Submitted March 12, 2012
Pasadena, California
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
Kwesi Hutchful appeals from the district court’s denial of a preliminary
injunction barring a foreclosure sale of his condominium. He argues that
defendants (hereafter referred to collectively as “Wells Fargo”) failed to comply
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
with California Civil Codes §§ 2923.5 and 2924. We affirm the district court’s
denial of relief.
“A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). A district court decision regarding preliminary injunction relief
is subject to limited and deferential review and we will reverse only if the district
court abused its discretion. Flexible Lifeline Sys., Inc. v. Precision Lift, 654 F.3d
989, 993-94 (9th Cir. 2011).
To the extent that the application of California Civil Codes 2923.5 and 2924
to Wells Fargo is not preempted by regulations promulgated under the Home
Owners Loan Act, 12 U.S.C. § 1461 et seq., see Ngoc Nguyen v. Wells Fargo
Bank, 649 F. Supp. 2d 1022 (N.D. Cal. 2010), the statutes do not support
Hutchful’s request for injunctive relief. In Mabry v. Superior Court, 185 Cal. App.
4th 208 (2010), the California Court of Appeal opined that “section 2923.5 is not
preempted by federal banking regulations because it is, or can be construed to be,
very narrow.” Id. at 231 (emphasis in original). The court further opined that “the
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only remedy provided is a postponement of the sale before it happens.” Id. at 235(emphasis in original).
In light of this case law, the district court properly construed the notice
requirement of California Civil Code § 2923.5 as having been met by Hutchful’s
extensive discussions with Wells Fargo regarding loan modification. Similarly, the
district court properly determined that Hutchful’s allegations that Wells Fargo had
not mailed a Notice of Default to him as required by California Civil Code § 2924
would not support a grant of relief. Wells Fargo submitted multiple affidavits of
mailings of the Notice of Default to Hutchful. Although Hutchful argues that he
did not receive these mailings, he does not deny that he received notice of the
foreclosure sale, and eventually received the Notice of Default by mail well before
the scheduled foreclosure sale.
Because Hutchful has not shown that he is likely to succeed on the merits,
the district court’s denial of a preliminary injunction is AFFIRMED.
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