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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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National Credit Union Administration in)
its capacity as conservator for AEA)
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Federal Credit Union,
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Defendant.
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Todd Burch,

CV 11-02309-PHX-FJM
ORDER

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We have before us defendant's motion for a temporary restraining order and a

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preliminary injunction (doc. 16) and plaintiff's response (doc. 19).

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This action arises from loans that plaintiff secured from AEA Federal Credit Union

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("AEA") to finance a number of condominium projects. The National Credit Union

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Administration ("NCUA") assumed control of AEA's operations on December 17, 2010 and

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placed AEA into a conservatorship. Plaintiff originally filed an action in the Superior Court

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of Arizona in Yuma County asserting three claims for relief: (1) fraudulent

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misrepresentation; (2) breach of implied covenant of good faith and fair dealing (tortious

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breach of contract); and (3) defamation. The Superior Court granted the NCUA's motion to

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substitute as the real party in interest for AEA. Defendant subsequently removed to this

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court.

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On February 1, 2012, plaintiff recorded three notices of lis pendens referencing this

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action. The next day, AEA acquired these properties at a trustee's sale. Defendant filed a

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counterclaim on March 1, 2012, asserting two counts: (1) temporary and preliminary

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injunction requiring plaintiff to immediately release the lis pendenses and refrain from

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recording similar documents; and (2) an award of treble damages under A.R.S. § 33-420(A)

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for the filing of the lis pendenses (doc. 15). It contemporaneously filed a motion for a TRO

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and preliminary injunction, asking that we require plaintiff to immediately release the lis

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pendenses (doc. 16).

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Plaintiff's response indicates that he recorded releases for all three lis pendenses at

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issue on February 27, 2012. Plaintiff attached copies of the recorded releases. See Response

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at 6-22. Because defendant has already received the relief sought in its motion for TRO and

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preliminary injunction (indeed, the releases were recorded even before defendant filed this

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motion), the motion is now moot. We cannot require plaintiff to do something that he has

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already done.

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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.

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