Burch v. National Credit Union Administration

Filing 21

ORDER denying 16 defendant's motion for a temporary restraining order and a preliminary injunction on grounds of mootness. Signed by Judge Frederick J Martone on 3/6/2012.(KAR)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) National Credit Union Administration in) its capacity as conservator for AEA) ) Federal Credit Union, ) ) Defendant. ) ) Todd Burch, CV 11-02309-PHX-FJM ORDER 16 We have before us defendant's motion for a temporary restraining order and a 17 18 preliminary injunction (doc. 16) and plaintiff's response (doc. 19). 19 This action arises from loans that plaintiff secured from AEA Federal Credit Union 20 ("AEA") to finance a number of condominium projects. The National Credit Union 21 Administration ("NCUA") assumed control of AEA's operations on December 17, 2010 and 22 placed AEA into a conservatorship. Plaintiff originally filed an action in the Superior Court 23 of Arizona in Yuma County asserting three claims for relief: (1) fraudulent 24 misrepresentation; (2) breach of implied covenant of good faith and fair dealing (tortious 25 breach of contract); and (3) defamation. The Superior Court granted the NCUA's motion to 26 substitute as the real party in interest for AEA. Defendant subsequently removed to this 27 court. 28 On February 1, 2012, plaintiff recorded three notices of lis pendens referencing this 1 action. The next day, AEA acquired these properties at a trustee's sale. Defendant filed a 2 counterclaim on March 1, 2012, asserting two counts: (1) temporary and preliminary 3 injunction requiring plaintiff to immediately release the lis pendenses and refrain from 4 recording similar documents; and (2) an award of treble damages under A.R.S. ยง 33-420(A) 5 for the filing of the lis pendenses (doc. 15). It contemporaneously filed a motion for a TRO 6 and preliminary injunction, asking that we require plaintiff to immediately release the lis 7 pendenses (doc. 16). 8 Plaintiff's response indicates that he recorded releases for all three lis pendenses at 9 issue on February 27, 2012. Plaintiff attached copies of the recorded releases. See Response 10 at 6-22. Because defendant has already received the relief sought in its motion for TRO and 11 preliminary injunction (indeed, the releases were recorded even before defendant filed this 12 motion), the motion is now moot. We cannot require plaintiff to do something that he has 13 already done. 14 15 16 Accordingly, IT IS ORDERED DENYING defendant's motion for a temporary restraining order and a preliminary injunction on grounds of mootness (doc. 16). DATED this 6th day of March, 2012. 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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