                                                                              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                           NOT FOR PUBLICATION                                MAR 12 2012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




                                           2
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.




                                          3
