Todd v. Chase Manhattan Mortgage Corporation et al

Filing 30

ORDER denying 13 Plaintiff's renewed motion for temporary restraining order. (See document for full details). Signed by Judge Frederick J Martone on 5/24/12.(LAD)

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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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Chase Manhattan Mortgage Corp.; Chase)
Home Finance LLC; Chase Fulfillment)
Services; Cal-Western Reconveyance)
Corp.; United States Department of)
Housing and Urban Development; PK)
Management Group Inc.; Secretary of)
Housing and Urban Development;)
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Unknown Parties,
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Defendants.
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Sandra Todd,
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CV 12-00129-PHX-FJM
ORDER

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The court has before it plaintiff's renewed motion for temporary restraining order

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("TRO") (doc. 13) and memorandum in support of her motion for TRO (doc. 14). We

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ordered plaintiff to serve the TRO on defendants, and ordered defendants to respond no later

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than May 14, 2012 (doc. 17). Defendants JP Morgan Chase Bank, N.A. (successor by

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merger to Chase Home Finance LLC) (doc. 22) and PK Management Group (doc. 21)

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responded, and plaintiff replied (doc. 23).1

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In November 2002, plaintiff signed a Deed of Trust in connection with her purchase

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of a home in Chandler, Arizona. The Deed of Trust, which identifies plaintiff as borrower

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Chase, which states that it has not yet been served with the complaint, makes a
limited appearance to respond to the TRO.

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and Fidelity & Trust Mortgage, Inc. as lender, states that plaintiff owes lender $147,175. The

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Deed of Trust further provides that "[t]his debt is evidenced by Borrower's note dated the

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same date as this Security Instrument." Compl., ex. B at 1 (doc. 6).

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Plaintiff's home was sold at a Trustee's Sale on June 28, 2010. A Trustee's Deed Upon

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Sale was executed and recorded, which identifies the purchaser as Chase Manhattan

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Mortgage Corp., its successors and assigns. Compl., ex. D. On April 19, 2012, a "notice of

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foreclosure" letter was posted on plaintiff's door.

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Management Group has become the owner. . . pursuant to a foreclosure sale." Compl., ex.

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E at 1. Plaintiff was given five days to vacate the premises.

Plaintiff was informed that "PK

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This action was filed on January 20, 2012. The amended complaint asserts claims for

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(1) quiet title and (2) breach of contract. This is plaintiff's third attempt at a TRO. We

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denied plaintiff's first motion because she failed to give notice and failed to satisfy Rule

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65(b)(1), Fed. R. Civ. P. (doc. 4). We denied plaintiff's second motion, both for failure to

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satisfy Rule 65(b)(1), Fed. R. Civ. P. and because plaintiff's one page motion did not

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establish her entitlement to relief under Winter v. Natural Res. Def. Council, Inc., 555 U.S.

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7, 129 S. Ct. 365 (2008) (doc. 12). Despite plaintiff's effort, her latest TRO attempt also fails

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to show that she is entitled to injunctive relief.

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Preliminary injunctive relief is "an extraordinary remedy." Winter, 555 U.S. at 24,

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129 S. Ct. at 376. To obtain it, plaintiff must show that (1) she is "likely to succeed on the

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merits," (2) she is "likely to suffer irreparable harm in the absence of preliminary relief," (3)

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"the balance of equities tips in [her] favor," and (4) "an injunction is in the public interest."

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Id. at 20, 129 S. Ct. at 374. Plaintiff is not likely to succeed on the merits on her quiet title

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claim. Quiet title is not an available remedy to a homeowner unless she has paid off the loan

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or shown that she is ready and able to do so. See Farrell v. West, 57 Ariz. 490, 491, 114 P.2d

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910, 911 (1941); Reader v. BAC Home Loan Servicing LP, CV-11-02461-PHX-FJM, 2012

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WL 125977, at *4 (D. Ariz. Jan. 17, 2012) (same). Plaintiff has not alleged that she either

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paid off the loan or is ready to do so. Plaintiff argues that she is not subject to this

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requirement because she never signed a negotiable instrument that encumbered her property,

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and claims that the Deed of Trust only secures an "alleged loan." Reply at 5. This argument

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is directly contradicted by the Deed of Trust itself, which expressly states that plaintiff owes

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$147,175, debt that "is evidenced by Borrower's note dated the same date as this Security

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Instrument." Compl., ex. B at 1. By signing the Deed of Trust, plaintiff "accept[ed] and

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agree[d] to the terms contained" within the document. Id. at 5; see also Cervantes v.

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Countrywide Home Loans, Inc., 656 F.3d 1034, 1042 (9th Cir. 2011) ("By signing the deeds

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of trust, the plaintiffs agreed to the terms and were on notice of the contents."). To the extent

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that plaintiff is arguing the sale is void because no assignment of the Deed of Trust was

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recorded, this argument has been squarely rejected by the Arizona Supreme Court. In re

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Vasquez, 228 Ariz. 357, __, 266 P.3d 1053, 1055 (2011) (no requirement that an assignment

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of a deed of trust be recorded).

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Plaintiff is not entitled to injunctive relief on the breach of contract claim because the

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relief available for a breach of contract - money damages - is an adequate remedy at law.

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The harm, in other words, is not irreparable. See Rent-A-Center, Inc. v. Canyon Television

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& Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) ("economic injury alone" is not

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irreparable).

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Finally, the balance of equities and consideration of the public interest tip strongly in

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favor of defendants. Although plaintiff will undoubtedly suffer a personal loss if she is

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finally evicted from her home, she admits that she has been living in a home that was sold

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at a Trustee's Sale nearly two years ago. The public interest is not served by further delaying

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the transfer of property sold in 2010.

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Accordingly, IT IS ORDERED DENYING plaintiff's renewed motion for temporary
restraining order (doc. 13).
DATED this 24th day of May, 2012.

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