2017-00219391-CU-OR

Dwight D. Woodard vs. Wells Fargo Bank, N.A.

Nature of Proceeding: Motion to Dissolve Preliminary Injunction and Motion to Dismiss

Filed By: Melamed, Samuel R.

Defendants Wells Fargo Bank, N.A. and U.S. Bank as Trustee for WFASC 2005-AR7;

U.S. Bank National Association, as Trustee, Successor in Interest to Wachovia Bank, National Association, as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass Through Certificates, Series 2005 (collectively, “Defendants”) motion to dissolve preliminary injunction and motion to dismiss is ruled upon as follows.

Defendants’ request for judicial notice is granted.

Plaintiff filed his complaint in this non-judicial foreclosure matter on September 21, 2017. The real property at issue is located in Solano County at 3455 Laguna Creek Trail, Vacaville, California 95688.

On September 25, 2017, this Court granted Plaintiff’s ex parte application for a temporary restraining order (“TRO”) enjoining Defendants from proceeding on a Trustee’s Sale of the property, pending a hearing on Plaintiff’s application for a preliminary injunction. On October 17, 2017, this Court granted Plaintiff’s request for a preliminary injunction to prevent foreclosure on the property. The Court’s minute order required Plaintiff to post a bond in the amount of $10,000.

Plaintiff has not furnished the $10,000 bond. (Roman Decl. ¶ 2.)

Parenthetically, compliance with a facially valid court order is mandatory. (See, e.g., In re Brambini (1923) 192 Cal. 19, 28-32; cf.Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal. App. 4th 1225.)

On October 17, 2018, the parties having so stipulated, the Court granted the parties’ motion to transfer venue to Solano County and Plaintiff was ordered to pay transfer fees. (RJN Exh. 4.) On December 4, 2018, this Court entered its Order Granting Motion to Transfer Venue, which reiterated that venue was improper in Sacramento County and provided Plaintiff shall pay transfer fees. (RJN Exh. 5.) A copy of the December 4, 2018, Order was served via Federal Express on Plaintiff on January 29, 2019. Defendant filed this instant motion on February 13, 2019.

Defendants contend, on information and belief, that Plaintiff has failed to pay transfer fees. (Roman Decl. ¶ 3.) As a result, this instant case has not been transferred to Solano County.

Defendants now move to dissolve the preliminary injunction due to Plaintiff’s failure to post the undertaking, and to have this action dismissed without prejudice pursuant to CCP § 399(a) [failure to pay transfer fees].

Pursuant to CCP 399(a), “[i]f those costs and fees are not paid within 30 days after service of notice of the transfer order, . . . then within 30 days after notice of finality of the order of transfer, the court on a duly noticed motion by any party may dismiss the action without prejudice to the cause on the condition that no other action on the cause may be commenced in another court prior to satisfaction of the court’s order for costs and fees.”

In the instant matter, Defendants served a Notice of Entry of Order on Plaintiff via Federal Express on January 29, 2019. Defendants filed this motion to dismiss on February 13, 2019, only 15 days after they served the notice of the Court’s December 4, 2018, transfer order. Accordingly, this motion is premature. Plaintiff had 30 days after service of notice of the transfer order to pay transfer fees, yet Defendants moved to dismiss only 15 days after giving notice to Plaintiff of the final transfer order. The motion to dismiss is DENIED without prejudice.

As to Defendants’ motion to dissolve the preliminary injunction, the court shall stay the motion pending a motion to dismiss the action.

The minute order is effective immediately. No formal order pursuant to CRC Rule

3.1312 or further notice is required.