Lowry et al v. JPMorgan Chase Bank NA et al

Filing 84

ORDER denying 78 Plaintiff's motion for preliminary injunction. ORDERED that Defendants may proceed with a trustee's sale and foreclosure of Plaintiffs' property in accordance with all applicable laws. Signed by Senior Judge James A Teilborg on 12/1/16.(EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gary F Lowry, et al.,
Plaintiffs,

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v.

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No. CV-11-08177-PCT-JAT
ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION

JPMorgan Chase Bank NA, et al.,

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Defendants.

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Pending before the Court is Gary F. Lowry and Marian Carol’s (“Plaintiffs”)

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Motion for Preliminary Injunction. (Doc. 78). Defendants filed a response (Doc. 82) and

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Plaintiffs replied (Doc. 83). The Court now rules on the motion.

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I.

Background

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In 2006, Plaintiffs obtained a loan from Defendants to refinance property on which

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they operated a non-profit spiritual retreat center called the Western Spirit Enrichment

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Center. (Doc. 62 at 1). In October 2011, Plaintiffs filed a complaint against Defendants

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alleging improper denial of requests for loan modification. The complaint was dismissed

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by this Court for failure to state a claim for relief, and an appeal of that dismissal is

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currently pending before the Ninth Circuit Court of Appeals. (Docs. 38, 39).

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Plaintiffs then filed a motion for injunctive relief to prevent Defendants from

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initiating foreclosure proceedings against the property. (Doc. 46). With this Court’s

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approval, the parties agreed to stay any foreclosure activity pending the result of

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Plaintiffs’ appeal, provided that Plaintiffs posted a bond in the amount of $2000 per

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month. (Doc. 62). Plaintiffs then filed a second motion for injunctive relief, which this

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Court treated as a motion for reconsideration of its order approving the stay and setting

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the amount of bond. (Docs. 63, 71). The Court denied Plaintiffs’ motion and reaffirmed

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its prior determination that a $2000 per month bond was necessary to protect Defendants’

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interest in the property, and that the bond imposed “no greater burden upon Plaintiffs

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than what would result in Plaintiffs prevail before the Ninth Circuit Court of Appeals on

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a legitimate point of law.” (Doc. 71 at 2–3). Plaintiffs were ordered to post the bond

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within 48 hours of the Court’s order. (Doc. 71 at 3). Plaintiffs failed to do so. (Doc. 73).

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As a result, this Court granted Defendants’ subsequent motion to quash the stay (Doc. 69)

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and allowed Defendants to proceed with a trustee’s sale and foreclosure. (Doc. 73 at 2). A

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trustee’s sale has been scheduled for December 19, 2016.

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II.

Analysis

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Plaintiffs now move to enjoin Defendants from conducting the sale, relying largely

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on a repetition of arguments already made before this Court. (See Docs. 62, 71, 73). This

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Court agrees with Defendants that the doctrine of res judicata is applicable here: “[u]nder

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the doctrine of res judicata an existing final judgment rendered upon the merits . . . is

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conclusive as to every point decided and as to every point which could have been raised

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by the record[.]” Di Orio v. City of Scottsdale, 408 P.2d 849, 850 (Ariz. App. 1965).

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Plaintiffs have previously argued that they are entitled to maintain the status quo of their

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ownership in the property until their appeal is decided. This Court has already rejected

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that contention. It has instead ruled that, in light of Plaintiff’s unwillingness to pay the

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agreed-upon bond amount, Defendants may go forward with a foreclosure and trustee’s

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sale in order to protect their interest in the property. (Doc. 73). Similarly, Plaintiffs have

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already moved for an injunction in Arizona State Court and in the Ninth Circuit Court of

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Appeals, and both courts have denied Plaintiffs’ requests. (Doc. 82-1 at 1, 95, 120, 143).

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Plaintiffs are not now entitled to re-argue these same points.

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Moreover, Plaintiffs have not demonstrated they are entitled to injunctive relief.

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To obtain a preliminary injunction, the moving party must show: (1) a likelihood of

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success on the merits; (2) a likelihood of irreparable harm to the moving party in the

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absence of preliminary relief; (3) a balance of equities tips in the favor of the moving

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party; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def.

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Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs have not shown that they are likely to

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succeed on the merits of their appeal, and even if they were to succeed at the Ninth

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Circuit, Plaintiffs have already demonstrated an unwillingness and inability to comply

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with a judgment requiring them to make reasonable payments on the property. (See Doc.

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71 at 2–3). Plaintiffs are also unable to show that the equities of the injunction are

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balanced in their favor, because this Court has already held that Defendants are entitled to

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protection of their property interest in the form of a bond. Plaintiffs do not meet the

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requirements for showing that injunctive relief is warranted.

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For the foregoing reasons,

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IT IS ORDERED denying Plaintiff’s motion for preliminary injunction. (Doc.

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78).
IT IS FURTHER ORDERED that Defendants may proceed with a trustee’s sale
and foreclosure of Plaintiffs’ property in accordance with all applicable laws.
Dated this 1st day of December, 2016.

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