Schayes et al v. BAC Home Loans Servicing LP

Filing 13

ORDER that Plaintiffs' Motion for Temporary Restraining Order (Doc. 3) and Motion for Preliminary Injunction (Doc. 4) are DENIED WITHOUT PREJUDICE. Signed by Judge G Murray Snow on 10/6/10.(KMG)

Schayes et al v. BAC Home Loans Servicing LP

Doc. 13

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WO NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Daniel L. Schayes and Wendy L. Schayes,) ) ) Plaintiffs, ) ) vs. ) ) BAC Home Loans Servicing, LP ) ) Defendant. ) )

No. CV-10-1893-PHX-GMS ORDER

On September 3, 2010, Plaintiffs filed an Original Petition (Doc. 1), a Petition for Restraining Order, and a Petition For Temporary Injunction (Docs. 3-4). In the motions, Plaintiffs request that this Court temporarily enjoin a trustee's sale of property located at 7035 E. Berneil Dr. Paradise Valley, AZ 85253. The trustee's sale was originally scheduled for September 9, 2010 and then apparently postponed. 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

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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). In Plaintiffs' petition, they allege that Defendant violated various provisions of federal law, including : (1) the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq.; (2) the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq.; and (3) the Deceptive Practices Act ("DPA"), 15 U.S.C. § 45 et seq. Plaintiffs also assert claims of unjust enrichment, breach of fiduciary duty, negligence, negligence per se, fraud, intentional infliction of emotional distress, and the breach of covenant of good faith and fair dealing. Outside of the verified Petition for Temporary Injunction, which principally contains allegations only, Plaintiffs failed to present any affidavits or other admissible evidence supporting that they are likely to prevail on the merits of their claims. After review of the materials presented in this matter, the Court finds that Plaintiffs have failed to demonstrate a likelihood of success on the merits sufficient to grant injunctive relief. Moreover, Plaintiffs have failed to demonstrate that a trustee's sale is actually scheduled sufficient to demonstrate the possibility of irreparable injury. Because Plaintiffs have failed to demonstrate that injunctive relief is proper: IT IS THEREFORE ORDERED that Plaintiffs' Motion for Temporary Restraining Order (Doc. 3) and Motion for Preliminary Injunction (Doc. 4) are DENIED WITHOUT PREJUDICE. DATED this 6th day of October, 2010.

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