Buchanan v. Gandhi et al

Filing 31

ORDER denying Plaintiff's Motions for a TRO and permanent injunction. (Docs. 2 ; 17 .) FURTHER ORDERED denying Defendants' Motion to Strike as moot. (Doc. 28 .) See document for complete details. Signed by Judge Susan M Brnovich on 11/18/2022. (RMV)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Clark Buchanan, II,
Plaintiff,

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v.

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Randhir Gandhi, et al.,

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No. CV-22-01482-PHX-SMB
ORDER

Defendants.

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Before the Court are two motions by Plaintiff regarding the same foreclosure and

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eviction. The first is Plaintiff’s Motion for Non-Judicial Temporary Restraining Order to

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Permanent Injunction & Demand for Emergency Hearing to Stop or Stay Proposed Sale of

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730 North Cedar Ridge Drive, Oracle, Arizona, 85623 Due to Pending Title Dispute &

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Wrongful Foreclosure Lawsuit Stay Until Trial. (Doc. 2). Defendants filed a Response

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(Doc. 9), and Plaintiff filed a Reply (Doc. 20). Plaintiff filed a second, nearly identical

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Motion putting forth the same arguments and requesting the same relief. (See Doc. 17.)

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Plaintiff requested oral argument, but because the Motion is fully briefed, the Court denies

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the request as it would be unnecessary. See LRCiv 7.2(f) (“The Court may decide motions

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without oral argument.”). The Court denies both Motions for the reasons discussed below.

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As such, Defendants’ Motion to Strike Plaintiff’s second Motion (see Doc. 28) is denied

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as moot, and Defendants’ need not file a Response to (Doc. 17).

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I.

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BACKGROUND
On July 26, 2005, Plaintiff and Bank of America, N.A. (“BANA”) executed a

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Promissory Note titled “Bank of America Equity Maximizer Agreement and Disclosure

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Statement” (“Loan Agreement”), which detailed Plaintiff’s $150,000 credit line to

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purchase the property in question. (See Docs. 9 at 3; 9-1 at 2–3, 9.) Plaintiff agreed to pay

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the total of all credit advances and the costs and expenses that secured his credit line.

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(Docs. 9 at 3; 9-1 at 2.) The Promissory Note was secured by a Deed of Trust. (Docs. 9 at

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3; 9-2 at 7.) The Deed of Trust was signed by Plaintiff and Theresa Buchanan. (Docs. 9

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at 3; 9-2 at 2.) On August 15, 2005, the Deed was recorded in the Pinal County Recorder’s

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Office as Instrument No. 2005-104177. (Docs. 9 at 3; 9-2 at 2.)

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BANA executed a Notice of Substitution of Trustee on August 10, 2016, naming

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Quality Loan Service Corporation as the Substitute Trustee under the Deed of Trust.

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(Docs. 9 at 3; 9-3 at 2.) BANA recorded the Notice of Substitution of Trustee with the

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Pinal County Recorder’s office. (Docs. 9 at 3; 9-3 at 2.) On December 27, 2019, BANA

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assigned all interests in the property to the beneficiary through its servicing agent,

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Defendant Select Portfolio Servicing, Inc. (“SPS”). (Docs. 9 at 3–4; 9-4 at 2.)

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Plaintiff’s two Motions do not provide any factual background on his Loan

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Agreement payment history. (See Docs. 2; 17.) Therefore, Defendants cite to Plaintiff’s

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Complaint (Doc. 1 at 13 ¶ 15.2) to assert that Plaintiff made timely payments under the

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Loan Agreement for eleven years, ceased making regular and timely payments in 2016,

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and stopped making payments entirely in 2017. (See Doc. 9 at 4.) But specifically,

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Plaintiff’s Complaint asserts that:
Beginning in 2005 and continuing until June, 2016 the plaintiff made timely
payments to Bank of America; on time and never missing a payment; until
Bank of America several times on a recorded line said, (via their Bank of
America Agents) “Stop making payments”. On a recorded line. In January
of 2017 it was agreed by Bank of America Agents and I to pay $300 per
month during bankruptcy direct to them for purported mortgage; this lasted
until approximately October of 2017, then BANK OF AMERICA agents said
approximately 7 times in multiple recorded conversations to stop making
payments. So I, John-Clark: Buchanan II stopped making payments.

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(Doc. 1 at 13 ¶ 15.2.)

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Next, Defendants assert that between 2016 and 2021, either BANA or SPS offered

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loan assistance to Plaintiff. (See Docs. 9 at 4; 9-5; 9-6.) Defendants claim that Plaintiff

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either failed to provide the necessary documents or rejected the offers for loan assistance.

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(Doc. 9 at 4.) Defendants further claim that BANA and SPS provided notices to Plaintiff

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regarding potential foreclosure due to missed payments. (Id.) Defendants allege that on

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November 12, 2019, SPS delivered a letter to Plaintiff, informing Plaintiff that a

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foreclosure sale for his property was scheduled for December 4, 2019. (Doc. 9-6.)

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Ultimately, the foreclosure sale was continued for nearly three years, and the property was

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eventually sold on September 6, 2022. (See Docs. 9-7; 9-8.)

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II.

LEGAL STANDARD

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Plaintiff’s Motions appear to seek Temporary Restraining Orders (“TRO”) and

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permanent injunctions of the sale of his property and any eviction efforts. A party seeking

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preliminary injunctive relief under Federal Rule of Civil Procedure 65 must show that: (1)

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he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence

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of injunctive relief; (3) the balance of equities tips in his favor; and (4) an injunction is in

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the public interest.1 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “A

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preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be

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granted unless the movant, by a clear showing, carries the burden of persuasion.’” Lopez,

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680 F.3d at 1072 (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis

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omitted)); see also Winter, 555 U.S. at 24 (“A preliminary injunction is an extraordinary

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remedy never awarded as of right.”). A party seeking a permanent injunction must

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establish the same factors, but also demonstrate actual success on the merits. Indep.

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Training & Apprenticeship Program v. Cal. Dep’t of Indus. Rels., 730 F.3d 1024, 1032

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(9th Cir. 2013).

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The analysis for granting a TRO is “substantially identical” to that for a preliminary

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Where a party “can only show that there are serious questions going to the
merits—a lesser showing than likelihood of success on the merits—then a preliminary
injunction may still issue if the balance of hardships tips sharply in the [party]’s favor, and
the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709
F.3d 1281, 1291 (9th Cir. 2013) (cleaned up). Under this Ninth Circuit “serious questions”
test, “[t]he elements . . . must be balanced, so that a stronger showing of one element may
offset a weaker showing of another.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir.
2012).

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injunction. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839

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n.7 (9th Cir. 2001). Unlike a preliminary injunction, see Fed. R. Civ. P. 65(a), a temporary

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restraining order (“TRO”) may be entered “without written or oral notice to the adverse

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party.” Fed. R. Civ. P. 65(b). A TRO may issue, ex parte, if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and (B) the movant’s
attorney certifies in writing any efforts made to give notice and the reasons
why it should not be required.

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Fed. R. Civ. P. 65(b) (emphasis added); see also LRCiv 65.1.

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III.

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DISCUSSION
A.

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Motions for TRO and Permanent Injunction to Stop or Stay the Sale of
Plaintiff’s Property

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Plaintiff’s Motions, which in part invites the Court to stop or stay the sale of his

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property by TRO or permanent injunction, is moot. The property was sold by non-judicial

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foreclosure on September 6, 2022, and is now owned by the beneficiary, MEB Loan Trust

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IV. (See Doc. 9-8.) “A claim is moot ‘when the issues presented are no longer live or the

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parties lack a legally cognizable interest in the outcome.’” Alvarez v. Hill, 667 F.3d 1061,

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1064 (9th Cir. 2012) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S 388, 396 (1980)).

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Because the foreclosure sale occurred, Plaintiff lacks a live or legally cognizable interest

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for this Court to temporarily or permanently enjoin the property’s transfer. For these

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reasons, Plaintiff’s Motions to stop or stay the foreclosure are denied.

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B.

Motions for TRO and Permanent Injunction to Stop Any Eviction
Efforts

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Plaintiff’s Motions also request the Court to stop or stay Plaintiff’s impending

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eviction. However, the Court finds that Plaintiff’s claims fail to establish any of the four

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Winter factors for granting a TRO or permanent injunction.

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1.

Plaintiff is unlikely to succeed on the merits of this action.

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For the Court to grant a TRO, Plaintiff must demonstrate a likelihood of success on

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the merits. Winter, 555 U.S. at 20. And for a permanent injunction, Plaintiff must establish
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actual success on the merits. Indep. Training & Apprenticeship Program, 730 F.3d at 1032.

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Plaintiff asserts numerous claims, many of which are completely without citation to legal

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authority. These include claims that: (1) Defendants failed to prove there was any debt

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because the promissory note was not included in the “notice of default and election to sell

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document”; (2) that Defendants’ cannot admit the Deed of Trust, Notice of Default, or

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election to sell documents into evidence because the promissory note was not admitted; (3)

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Defendant’s did not have the legal authority to exercise the power of sale clause or

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foreclose upon the home; (4) a question of lawful consideration exists; and (5) there is no

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fact witness to testify. (See Docs. 2; 17.) Because Plaintiff failed to present any legal

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authority supporting these assertions, it is unlikely Plaintiff would succeed on the merits

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of this claim. It follows that Plaintiff has not established actual success on the merits,

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either. As such, these claims fail factor one.

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Plaintiff raises other claims with citation to legal authority, which the Court

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addresses separately. First, Plaintiff states in a heading that “[t]he Attorneys violated

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Arizona Lien Laws.” (Docs. 2 at 3; 17 at 3.) Plaintiff proceeds to cite and describe the

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crime of forgery under Arizona state law but makes no factual assertions as to how A.R.S.

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§ 13-2002 was violated here. (Docs. 2 at 3–4; 17 at 3–4.) Because Plaintiff asserts no

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factual argument for a statutory violation, this claim fails under factor one.

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Plaintiff also alleges Defendants violated federal wire fraud laws, citing 18 U.S.C.

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§ 1343. However, Plaintiff merely states that Defendants used wire communications such

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as “facsimile’s, emails and the internet to accomplish this scheme to defraud the

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homeowner, and the courts by causing to be sent, filed, and record mortgage documents

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which they knew or should have known to be fraudulent.” (Docs. 2 at 7; 17 at 7.) Beyond

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this sweeping allegation, Plaintiff provides no supporting facts, evidence, or legal authority

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to support his claim. Therefore, this claim fails factor one.

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Next, Plaintiff alleges that Defendants violated the Fair Debt Collection Practice

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Act, citing 15 U.S.C. § 1692, et seq., because Defendants misrepresented themselves as

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having legal authority to collect debts secured by the Deed of Trust. But Plaintiff fails to

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cite legal authority supporting this proposition, or how Defendants unlawfully exercised

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their rights under the applicable agreements. (See Docs. 9-1–9-4; 9-7–9-8.) At most,

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Plaintiff cites to various Uniform Commercial Code (“UCC”) provisions, all of which are

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irrelevant to his asserted claim of fraud and misrepresentation. This claim fails factor one.

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Plaintiff subsequently raises arguments that Defendants had a scheme to defraud

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because “the creditor does not provide full disclosure, and the contract is extremely

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deceptive and unconscionable.” (Docs. 2 at 8; 17 at 8.) To support this claim, Plaintiff

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generally cites to In re Pearl Maxwell, 281 B.R. 101 (Bankr. D. Mass. 2002) but fails to

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provide any facts for an analysis to be conducted under the caselaw. Plaintiff also asserts

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that his “original debt was actually zero because the borrower’s financial asset was

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exchanged for FED’s promissory notes in an even exchange.” (Docs. 2 at 8; 17 at 8.)

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Furthermore, Plaintiff cites irrelevant provisions of the UCC, and proceeds to assert that

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security agreements signed with a lender can be rescinded without proper disclosures under

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12 C.F.R. § 226.23, and that 15 U.S.C. §§ 1601, 1692, and 1693 provide remedies for

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Defendants’ deceptive and unconscionable contract. (Docs. 2 at 8–10; 17 at 8–10.) Again,

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Plaintiff makes broad assertions without any supporting, articulable facts. Without facts

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to apply the law to, the Court cannot find that Plaintiff has a likelihood of success on the

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merits. Factor one is not satisfied.

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Plaintiff’s remaining arguments that there was fraud and deception on the court, a

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void ultra vires contract, and that federal racketeering laws have been broken, all generally

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cite to caselaw without factual support. (See Docs. 2 at 10–13; 17 at 10–13.) For the same

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reasons as stated above, the Court finds these claims fail factor one.

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2.

Plaintiff has not demonstrated irreparable harm would occur absent a
TRO or permanent injunction.

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Factor two is similarly not met. “Irreparable harm is traditionally defined as harm

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for which there is no adequate legal remedy, such as an award of damages.” Ariz. Dream

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Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). Likewise, harms that can later

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be remedied by an award of damages does not traditionally constitute an irreparable harm.

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United States v. Gear Box Z Inc., 526 F.Supp.3d 522, 529 (D. Ariz. 2021). Here, Plaintiff

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has a heading dedicated to irreparable injury. (See Docs. 2 at 7; 17 at 7.) Yet, Plaintiff

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fails to assert any irreparable harm at all, and merely repeats arguments regarding the

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legality of the foreclosure.

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damages, further indicating that Plaintiff has failed to allege irreparable harm if a TRO or

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permanent injunction is not granted. (See Docs. 2 at 2; 17 at 2); see also Gear Box Z Inc.,

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526 F.Supp.3d at 529. Factor two therefore fails.

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Moreover, Plaintiff’s Motions demand $25.5 million in

The balance of equities does not tip in Plaintiff’s favor.

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To satisfy factor three of the Winter test, the balance of hardships must tip sharply

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in plaintiff’s favor. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1133 (9th Cir.

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2011). Plaintiff fails to demonstrate this. As Defendants point out, between 2016 and

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2021, Plaintiff was repeatedly contacted with offers for loan payment assistance by both

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BANA and SPS. (Doc. 9 at 11.) It was not until 2022 that Plaintiff faced a foreclosure

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sale and eviction. As discussed above, Plaintiff fails to cite legal authority or articulable

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facts demonstrating any viable claim for unlawfulness on behalf of the Defendants or the

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property’s foreclosure. Plaintiff also does not state any irreparable harm or injury because

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of the foreclosure and pending eviction. Plaintiff thus does not satisfy factor three.

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4.

Public interest does not favor injunctive relief.

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“The public interest inquiry primarily addresses impact on non-parties rather than

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parties, and takes into consideration the public consequences in employing the

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extraordinary remedy of injunction.” hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180,

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1202 (9th Cir. 2022) (cleaned up). Here, Plaintiff has failed to articulate facts or legal

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authority that supports a likelihood that Defendants acted under an invalid Loan

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Agreement, Deed of Trust, or secured interest in the property. In contrast, Defendants have

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provided documents, factual allegations, and legal authority to support the lawfulness of

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the foreclosure sale—as well as nearly five years of collective efforts to provide Plaintiff

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with loan repayment assistance opportunities. Courts will not find that a TRO is in the

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public interest when “it would shield debtors from the agreed-upon repercussions of a

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failure to repay debt.” Karam v. Specialized Loan Servicing LLC, No. CV-22-00029-TUC-

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RCC, 2022 WL 2439220, at *2 (D. Ariz. July 5, 2022). For these reasons, Plaintiff has not

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satisfied factor four.

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IV.

CONCLUSION

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Accordingly,

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IT IS ORDERED denying Plaintiff’s Motions for a TRO and permanent injunction.

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(Docs. 2; 17.)
IT IS FURTHER ORDERED denying Defendants’ Motion to Strike as moot.
(Doc. 28.)
Dated this 18th day of November, 2022.

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