Faulkner v. Bank of New York Mellon et al

Filing 10

ORDER, denying Plaintiffs' 8 Petition for Injunctive Relief as stated in this Order. Signed by Judge David G Campbell on 7/1/11.(REW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Jeremy and Valerie Faulkner,

No. CV11-1070-PHX-DGC

Plaintiffs,

10

ORDER

11

vs.

12

Bank of New York Mellon f/k/a Bank of
New York, et al.,

13

Defendants.

14
15
16

On May 27, 2011, Plaintiffs pro se filed a complaint challenging Defendants’

17

conduct with regard to the loan for Plaintiffs’ property (Doc. 1), and also filed a notice of

18

lis pendens against the subject property (Doc. 3). Plaintiffs’ complaint sought a variety

19

of relief, including a temporary restraining order (“TRO”). Doc. 1. Plaintiffs did not

20

move for a TRO until June 27, 2011.1 Doc. 8. From the TRO papers it appears that a

21

trustee sale was noticed for May 31, 2011 (Doc. 8-4 at 2), that it was postponed (id. at 31-

22

33), and that a forcible detainer trial in the Estrella Mountain Justice Court was scheduled

23

for June 28, 2011 at 10:30 a.m. (Doc. 8 at 28).

24

To obtain a TRO and a preliminary injunction Plaintiffs must show that they are

25

likely to succeed on the merits, that they are likely to suffer irreparable harm in the

26
27
28

1

Plaintiffs’ affidavit states the motion was mailed to the courthouse on June 17,
2011 (Doc. 8 at 22), but the filing date of record in the Court’s Electronic Filing System
is June 27, 2011.

1

absence of preliminary relief, that the balance of equities tips in their favor, and that

2

injunctive relief is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7,

3

129 S.Ct. 365, 374 (2008). The test includes a sliding scale. If Plaintiffs show that the

4

balance of hardships will tip sharply in their favor, they need not make a strong showing

5

of likelihood of success on the merits – the existence of serious questions will suffice.

6

Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049-53 (9th Cir. 2010). Serious

7

questions exist when a plaintiff shows

8

Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (en banc)

9

(quoting Nat’l Wildlife Fed’n v. Coston, 773 F.2d 1513, 1517 (9th Cir. 1985)). In an

10

effort to satisfy these requirements Plaintiffs make a number of arguments, which the

11

Court will address individually.

a “‘fair chance of success on the merits.’”

12

First, Plaintiffs allege that Defendants trespassed on their property without consent

13

and broke into their home through the back door on May 31, 2011. Doc. 8 at 1.

14

Although the law does not condone trespass, Plaintiffs fail to allege or show that trespass

15

is likely to recur.

16

monitoring the property by parking in front of the Plaintiffs’ home” (Doc. 8 at 8:17-19)

17

appears to show Defendants are keeping their distance, and Plaintiffs do not explain how

18

parking on a public road constitutes trespass on Plaintiffs’ property. Plaintiffs also fail to

19

show how a past incident of trespass by an agent of one or more defendants entitles

20

Plaintiffs to enjoin the forcible detainer proceeding or to unwind the trustee sale if the

21

sale already occurred. They have, therefore, not shown a likelihood of success on the

22

merits or the existence of serious questions on this ground for emergency injunctive

23

relief.

Plaintiffs’ assertion that Defendants’ representatives “are now

24

Second, Plaintiffs argue that Defendants wrongfully proceeded with a foreclosure

25

despite Plaintiffs having sent them a cease and desist notice, written requests under

26

RESPA, a complaint of possible fraud, a dispute of debt, and a request to validate debt.

27

Doc. 8 at 2.

28

Defendants required Defendants to stop the foreclosure. Although Plaintiffs characterize

Plaintiffs have cited no law that the mere notice of these issues to

‐ 2 ‐ 

1

these notices as “legally binding” (Doc. 8 at 19:32), Plaintiffs do not allege the notices

2

were court orders. To the extent Plaintiffs argue that had the trustee properly investigated

3

the allegations in the notices the trustee would have concluded the sale would be

4

improper, Plaintiffs do not present affirmative evidence from which the Court may

5

conclude that Plaintiffs are likely to succeed on the merits of this claim. Nor have

6

Plaintiffs explained why they waited until days before the forcible detainer trial to seek a

7

TRO, or why they did not file the TRO motion in person thereby avoiding the delay of

8

mailing. In light of this delay and Plaintiffs’ failure to show other viable equitable

9

considerations, the Court concludes that the balance of equities does not tip sharply in

10

Plaintiffs’ favor. Thus, even serious questions would not justify injunctive relief.

11

Third, Plaintiffs argue that emergency injunctive relief is warranted because they

12

are entitled to due process under the Fifth Amendment. See Doc. 8 at 2. But Plaintiffs

13

have not identified the state action that will deprive them of due process and have not

14

meaningfully developed their due process arguments. Therefore, the Court has no basis

15

on which to find that Plaintiffs are likely to succeed on the merits or even have a fair

16

chance of success. The Court also finds that Plaintiffs are not entitled to emergency

17

injunctive relief because they have not shown the balance of equities tips sharply in their

18

favor, as discussed above.

19

Plaintiffs’ request for emergency injunctive relief will be denied. To the extent

20

Plaintiffs also seek a permanent injunction (Doc. 8 at 2:1-3), the request is premature

21

until the merits of this case have been resolved through summary judgment or trial.

22
23
24

IT IS ORDERED that Plaintiffs’ petition for injunctive relief (Doc. 8) is denied
as stated above.
Dated this 1st day of July, 2011.

25
26
27
28
‐ 3 ‐