McAllister v. IndyMac Federal Bank FSB

Filing 8

TEMPORARY RESTRAINING ORDER granting pla's application for temporary restraining order 4 . FURTHER ORDERED dft and its appointed Trustee are enjoined for a period of 10 days from the date of issuance of this order from conducting or pursuing in any way a trustee's sale of pla's property located at 4241 W. Monte Cristo Ave., Phoenix, AZ 85053. FURTHER ORDERED this order is binding on dft; dft's officers, agents, servants, employees and attorneys' and any person acting in concert or participation with anyone previously described and having actual notice hereof. FURTHER ORDERED that no bond is required of pla for this TRO order. (See document for full details). Signed by Judge G Murray Snow on 5/21/2009. (LAD)

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NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) INDYMAC FEDERAL BANK, F.S.B., ) ) ) Defendant. ) ) CATHERINE MCALLISTER,

No. 09-CV-1075-PHX-GMS TEMPORARY RESTRAINING ORDER

Pending before the Court is the Emergency Application for Temporary Restraining Order ("TRO") of Plaintiff Catherine McAllister. (Dkt. # 4.) In her Petition, Plaintiff requests that this Court temporarily enjoin a trustee's sale of property located at 4241 W. Monte Cristo Ave., Phoenix, Arizona 85053. The trustee's sale is scheduled for 12:00 P.M., May 22, 2009. In support of her Application for a TRO, Plaintiff filed a verified complaint to which Plaintiff has attached both the Notice of Trustee's Sale and the Qualified Written Request she sent to Defendant Indymac Federal Bank pursuant to the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq. (Dkt. # 1.) Plaintiff additionally has filed the certification of her attorney that notice of the Complaint and Application were given to Defendant. (Dkt. # 4 Pt. 2.) On May 21, 2009, the Court conducted a hearing on the matter. (See Dkt. # 7.) Although Defendant did not appear, Plaintiff's counsel verified to the Court that timely notice was given Defendant of the scheduled hearing.

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Federal Rule of Civil Procedure 65 authorizes the Court to issue a preliminary injunction or TRO upon a proper showing. The standard for issuing a TRO is the same as that for issuing a preliminary injunction. See Brown Jordan Int'l, Inc. v. The Mind's Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2007). To prevail on a request for a preliminary injunction, a plaintiff must show either "(a) probable success on the merits combined with the possibility of irreparable injury or (b) that [it] has raised serious questions going to the merits, and that the balance of hardships tips sharply in [its] favor." Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003). The Ninth Circuit has explained that "these two alternatives represent `extremes of a single continuum,' rather than two separate tests. Thus, the greater the relative hardship to the moving party, the less probability of success must be shown." Immigrant Assistant Project of Los Angeles County Fed'n of Labor (AFLCIO) v. INS, 306 F.3d 842, 873 (9th Cir. 2002) (citation omitted). Here, after review of the Verified Complaint and supporting documentation, the Court finds that Plaintiff has raised serious questions going to the merits of her Complaint and that the balance of hardships tips sharply in her favor. Plaintiff has provided verified statements and evidence supporting the allegations that Defendant has violated its statutory obligations under RESPA, specifically 28 U.S.C. § 2605. While the Court recognizes the inconvenience imposed on Defendant in issuing this TRO, should this Court refuse to grant the TRO, Plaintiff would face potentially irreparable injury by the imminent sale of her primary residence. IT IS THEREFORE ORDERED that Plaintiff's Application for Temporary Restraining Order (Dkt. # 4) is GRANTED. IT IS FURTHER ORDERED that Defendant and its appointed Trustee are enjoined for a period of ten (10) days from the date and time of the issuance of this Order from conducting or pursuing in any way a trustee's sale of Plaintiff's property located at 4241 W. Monte Cristo Avenue, Phoenix, Arizona 85053.

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IT IS FURTHER ORDERED that this Order is binding on Defendant; Defendant's officers, agents, servants, employees, and attorneys; and any person acting in concert or participation with anyone previously described and having actual notice hereof. IT IS FURTHER ORDERED that no bond is required of Plaintiff for this TRO

DATED this 21st day of May, 2009, 4:15 P.M.

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