Lowry et al v. JPMorgan Chase Bank NA et al

Filing 71

ORDER denying 63 Plaintiffs' Motion for Reconsideration, captioned as "Motion for TRO and Preliminary Injunction." See attached Order. Signed by Senior Judge James A Teilborg on 5/20/2015.(TLB)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gary F. Lowry, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-11-08177-PCT-JAT JPMorgan Chase Bank NA, et al., 13 Defendants. 14 15 The relevant facts of this case are adequately summarized in the first two pages of 16 the Court’s prior Order at Doc. 62. Plaintiffs have refiled their motion for injunctive 17 relief, now captioned “Motion for TRO and Preliminary Injunction.” (Doc. 63). Although 18 Plaintiffs claim to seek preliminary injunctive relief, because the Court has already issued 19 a final order on the merits and this order is currently on appeal to the Ninth Circuit Court 20 of Appeals, the appropriate remedy is an injunction pending appeal. See Fed. R. App. P. 21 8(a)(1)(C). 22 The Court interprets Plaintiffs’ motion as a motion for reconsideration of the 23 Court’s prior Order, in which the Court approved a stipulation between the parties for a 24 stay pending appeal and set a bond of $2,000 per month.1 (Doc. 62 at 3-4). As the Court 25 remarked during the hearing, even if Plaintiffs’ request for injunctive relief were granted 26 27 28 1 Plaintiffs also appealed this Order. (Docs. 64 & 65). Because Plaintiffs filed the pending motion for reconsideration after filing their notice of appeal, this notice of appeal was not effective until the Court issued the present Order. See Fed. R. App. P. 4(a)(4)(B)(i). 1 (without a stipulation for a stay), the Court is still required to set an appropriate bond. 2 Thus, Plaintiffs’ motion is effectively a motion for reconsideration of the amount of the 3 bond. 4 “The purpose of a supersedeas bond is to preserve the status quo while protecting 5 the non-appealing party’s rights pending appeal.” Popular Grove Planting & Refining 6 Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190-91 (5th Cir. 1979). Plaintiffs 7 repeat their bald assertion that there is no risk to Defendant because Plaintiffs’ mortgage 8 is secured by their house. (Doc. 63 at 9). Two years ago, Plaintiffs filed an affidavit with 9 this Court, under penalty of perjury, in which they listed the value of their house and the 10 amount of their mortgage. (Doc. 41). On that affidavit, Plaintiffs reported that the value 11 of their house was substantially less than the current balance on their mortgage. (Id.) At 12 the April 23, 2015 hearing, Plaintiffs represented to the Court that the value of their 13 house had always exceeded the balance on the mortgage and there was very little risk for 14 Defendant. 15 In light of the changing evidence over time as to whether the value of Plaintiffs’ 16 house exceeds the amount owed on their mortgage, Plaintiffs have not shown that a bond 17 is unnecessary to protect Defendants from further financial harm as the result of 18 Plaintiffs’ appeal. To the contrary, the evidence shows that Plaintiffs have lived in their 19 house for approximately four years while not paying anything on their mortgage. The 20 goal of Plaintiffs’ lawsuit is, in part, to obtain a free house based on alleged wrongdoing 21 by Defendant. See (Doc. 24 at 84) (item “D”). Even if Plaintiffs succeeded before the 22 Ninth Circuit Court of Appeals on one of their claims, the result would still require an 23 equitable resetting of the mortgage terms. Because Plaintiffs declare that they cannot 24 even afford the $2,000 monthly bond, which reflects the fair market rent for their home, 25 Plaintiffs in essence admit that they have neither the intent nor means to ever pay their 26 mortgage—no matter how reasonable its terms. 27 For these reasons, Plaintiffs’ appeal to equity in waiving the bond requirement is 28 wholly unpersuasive. Similarly, Plaintiffs’ statement that they can post a “$100 security -2- 1 as a demonstration of their good-faith and intention,” (Doc. 63 at 14), is unavailing 2 because the facts of this case demonstrate a clear lack of good faith on the part of 3 Plaintiffs. The Court notes that imposing the $2,000 monthly bond is no greater burden 4 upon Plaintiffs than what would result if Plaintiffs prevail before the Ninth Circuit Court 5 of Appeals on a legitimate point of law. Accordingly, the bond must be posted within 48 6 hours or the Court will turn to Defendant’s recently-filed Motion to Quash Stay. 7 Therefore, 8 IT IS ORDERED that Plaintiffs’ motion for reconsideration, captioned as 9 10 “Motion for TRO and Preliminary Injunction,” (Doc. 63) is denied. Dated this 20th day of May, 2015. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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