Cytron v. PHH Mortgage Corporation et al

Filing 19

ORDER that Plaintiff's motion for temporary restraining (Doc. 18 ) is denied. Plaintiff's other motions (Docs. 11 , 12 , 14 ) are denied. Signed by Judge David G Campbell on 9/1/16.(KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV16-2441-PHX-DGC

Adam C. Cytron,
Plaintiff,

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vs.

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ORDER

PHH Mortgage Corp. et. Al,
Defendants.

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Plaintiff has filed an emergency motion to restrain Defendants from evicting

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Plaintiff and his family from their residence. Doc. 18. Plaintiff has filed other motions

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as well. Docs. 11, 12, 14. For the reasons that follow, the motions will be denied.

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As a preliminary matter, the Court notes that Plaintiff must comply with the

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Federal Rules of Civil Procedure, the Court’s Local Rules, and other federal law, even

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though he is not represented by an attorney. Plaintiff states in some of his filings that he

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is doing his best to comply with the Court’s requirements, which the Court appreciates,

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but the Court cannot give him legal advice, nor can it decline to apply the relevant rules

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and laws simply because Plaintiff is proceeding without counsel.

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A.

Request for Temporary Restraining Order (Doc. 18).

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To obtain preliminary injunctive relief such as a TRO, a plaintiff must show that

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he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

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absence of relief, that the balance of equities tips in his favor, and that injunctive relief is

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in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008). The test

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includes a sliding scale. If the plaintiff shows that the balance of hardships will tip

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sharply in his favor, he need not make a strong showing of likelihood of success on the

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merits – the existence of serious questions will suffice. Alliance for Wild Rockies v.

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Cottrell, 622 F.3d 1045, 1049-53 (9th Cir. 2010).

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Plaintiff cites these standards, but fails to show how they are satisfied. Doc. 18.

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Plaintiff’s motion asserts that Defendants have failed to produce the original promissory

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note for his property or to otherwise show that they are actual holders of the note, but

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provides no evidence in support. In addition, Arizona law does not require such a

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showing before a note can be enforced through a non-judicial foreclosure. See Hogan v.

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Washington Mut. Bank, N.A., 277 P.3d 781, 783 (Ariz. 2012); Mansour v. Cal-Western

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Reconveyance Corp., 618 F.Supp.2d 1178, 1181 (D. Ariz. 2009). Plaintiff’s motion also

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makes reference to various Arizona statutes, fraud, and unfair business practices, but

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again provides no explanation as to why he is likely to prevail on the merits of any of his

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claims.

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Plaintiff’s motion includes no exhibits or supporting evidence, and no affidavit.
The motion does make reference to his complaint, but it is not sworn. Doc. 1.

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Plaintiff also asks for a TRO without notice, but he has failed to address the

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requirements of Federal Rule of Civil Procedure 65(b). Nor does he provide the affidavit

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or verified complaint required by that rule. Fed. R. Civ. P. 65(b)(1)(A).

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For all of these reasons, the Court will deny Plaintiff’s request for a TRO.

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B.

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Plaintiff filed a motion seeking permission to hold a telephone conference with

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“USAA” (Doc. 11), but did not explain the purpose of the call or why the Court’s

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permission was needed. Plaintiff does not need the Court’s permission to talk with other

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parties in the case, in person or by phone. The Court notes that USAA does not appear to

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have been served in this case, nor has it made an appearance. The motion will be denied

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as moot.

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Other Motions.

Plaintiff has filed a 74-page motion asking that an accelerated summary judgment
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be entered in his favor or that an accelerated hearing be held. Doc. 12. The motion cites

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several different rules, many of them relating to post-trial matters. The motion itself

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seems to suggest that Plaintiff gave Defendants notice of his intent to cancel certain

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obligations under the Truth in Lending Act, and that Defendants failed to respond within

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20 days. The motion says that Plaintiff has communicated with the Consumer Finance

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Bureau and Congress, and implies that this makes possible some Court action.

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None of the Defendants appear to have been served in this case. Plaintiff is

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required to serve them in accordance with Rule 4 of the Federal Rules of Civil Procedure,

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within 90 days of filing his complaint, and to file a notice of service with the Court once

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each of them has been served, as required by Rule 4(l). Defendants must be made parties

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to this case through service before the Court can take any action on the merits. Once

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Defendants have been served, the Court will hold a case management conference under

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Rule 16 and set a schedule to govern these proceedings. Plaintiff is free to suggest a

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schedule he thinks reasonable, and the Court will consider his suggestion.

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meantime, his request for an expedited ruling on the merits is denied.

In the

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Plaintiff has filed a motion to “add pages back in” to his complaint, explaining that

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six pages were omitted when the complaint was filed. Doc. 14. If Plaintiff wishes to

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amend the complaint in the Court’s docket, he must do so in accordance with Rule 15 of

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the Federal Rules of Civil Procedure and Local Rule 15.1. The Court notes that Plaintiff

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has the right to file one amended complaint as a matter of course under the requirements

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and time limits of Rule 15(a).

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IT IS ORDERED:

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1.

Plaintiff’s motion for temporary restraining (Doc. 18) is denied.

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2.

Plaintiff’s other motions (Docs. 11, 12, 14) are denied.

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Dated this 1st day of September, 2016.

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