Przybylski v. Stumpf, et al.

Filing 14

ORDER denying without prejudice 8 Plaintiff's Motion for Emergency Temporary Restraining Order. Signed by Judge G Murray Snow on 5/18/10.(TLJ)

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WO
NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Bernard John Przybylski, Jr., Plaintiff, vs. John G. Stumpf, et al., Defendants.

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No. CV-10-8073-PCT-GMS ORDER

Pending before the Court is the Motion for a Temporary Restraining Order filed by Plaintiff Bernard John Przybylski, Jr. ("Plaintiff"). (Dkt. # 8.) For the following reasons, the Court denies the Motion. DISCUSSION Federal Rule of Civil Procedure 65 authorizes the Court to issue a preliminary injunction or Temporary Restraining Order ("TRO") upon a proper showing. The standard for issuing a TRO is the same as that for issuing a preliminary injunction. See Brown Jordan Int'l, Inc. v. The Mind's Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2007). To prevail on a request for a preliminary injunction, a plaintiff must show either "(a) probable success on the merits combined with the possibility of irreparable injury or (b) that [it] has raised serious questions going to the merits, and that the balance of hardships tips sharply in [its] favor." Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003). The Ninth Circuit has explained that "these two alternatives represent `extremes of a single continuum,'

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rather than two separate tests. Thus, the greater the relative hardship to the moving party, the less probability of success must be shown." Immigrant Assistant Project of LA County Fed'n of Labor (AFL-CIO) v. INS, 306 F.3d 842, 873 (9th Cir. 2002) (citation omitted). In this case, Plaintiff strenuously contends that each of the elements for a TRO are met. He fails, however, to explain how the applicable facts and law merit injunctive relief. With respect to his argument that his request for a TRO "clearly establish[es] a reasonable likelihood of success on the merits," Plaintiff simply offers the following: Plaintiff's legally protected property rights are clear and unambiguous. It is also clearly evident that Defendants' conduct set forth in Plaintiff's Complaint is wrongful and violate's Plaintiff's legally protected property rights. (Dkt. # 8.) This conclusory statement, however, is insufficient to merit a TRO. As the Supreme Court has repeatedly held, temporary injunctive relief will not be granted "unless the movant, by a clear showing, carries the burden of persuasion" of showing a likelihood of success on the merits. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In his 140 page Complaint, Plaintiff raises concerns about "legalese," "fictitious payees," violations of his "due process rights," and "subject-matter jurisdiction," but he does not provide a factual basis for relief. (Dkt. #1, at 5, 6, 8, 9.) Plaintiff also quotes from federal statutes at length, provides "questions that one might ask the bank in an interrogatory," summarizes a Minnesota Justice Court Action, discusses "modern money mechanics," and explains "how banks create money." (See generally id.) These topics, while somewhat interesting, do not demonstrate "by a clear showing" that Plaintiff is entitled to relief. And while Plaintiff contends that Defendants engaged in wrongful conduct, he does not explain what, how, or why the conduct is wrongful or illegal. In other words, Plaintiff's arguments are devoid of the factual and legal analysis necessary to show likelihood of success on the merits. The additional arguments set forth in Plaintiff's Motion are also unavailing. To the extent that Plaintiff complains that Defendants have defrauded "Arizona taxpayers, [the] Arizona politic, Arizona citizens, and [the] Arizona government" of recording fees, it appears that Plaintiff does not have standing to bring this claim. See Lance v. Coffman, 549 U.S. 437, -2-

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440 (2007) ("To have standing . . . a plaintiff must have more than a general interest common to all members of the public.") (internal quotation marks omitted). To the extent that Plaintiff does somehow have standing to pursue this claim, he has not demonstrated how injunctive relief is necessary to protect his interests from irreparable harm. In addition, while Plaintiff alleges that Defendants' attorneys "are purposefully obfuscating" the facts of this case and the law, he does not point to any examples evincing that opposing counsel has misrepresented the law or facts to the Court. Finally, several of Plaintiff's arguments appear to allege that Defendants have failed to produce the original note securing his mortgage. Another division of this Court, however, has already rejected this "show me the note" argument. See Mansour v. Cal-Western Reconveyance Corp., 618 F. Supp.2d 1178, 1181 (D. Ariz. 2009) (holding that Arizona law "do[es] not require presentation of the original note before commencing foreclosure proceedings"). Relying on Ariz. Rev. Stat. § 47-3301, the Mansour court held, "The UCC pertaining to negotiable instruments, as codified in Arizona at title 47, chapter 3, provides that `persons entitled to enforce an instrument [include] the holder of the instrument, a nonholder in possession of the instrument who has the rights of a holder[,] or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to § 47-3309.'" Id. (internal quotation marks omitted). The Court agrees with Mansour's analysis. Accordingly, to the extent that Plaintiff contends that Defendants are required to produce the original note to foreclose on his property, that claim fails. And while Plaintiff further contends that Defendants do not have authority to foreclose on his property, he fails to explain the factual basis for his belief that Defendants are not holders in due course of the note securing his mortgage. /// /// /// /// /// -3-

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IT IS THEREFORE ORDERED that Plaintiff's Motion for Emergency Temporary Restraining Order (Dkt. # 8) is DENIED without prejudice. DATED this 18th Day of May, 2010.

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