Veronica J. Rowe v. Randall D. Naiman et al

Filing 7

ORDER DENYING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAININGORDER by Judge Otis D. Wright, II (lc). Modified on 4/29/2014. (lc).

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United States District Court
Central District of California

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Case No. 2:14-cv-02498-ODW(SHx)

VERONICA J. ROWE,
Plaintiff,

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ORDER DENYING APPLICATION

v.

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FOR TEMPORARY RESTRAINING

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RANDALL D. NAIMAN ESQ – STATE

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BAR NO. 81048; and DOES 1 through 10, ORDER

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inclusive,

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Defendants.

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I.

INTRODUCTION

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In June 2012, non-party Homesales, Inc. purchased Plaintiff Veronica J.

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Rowe’s residence at a trustee’s sale. On April 25, 2014, she filed this action against

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Defendant Randall D. Naiman, who she alleges used forged and fraudulent documents

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to foreclose her mortgage note. Rowe also brought this temporary-restraining-order

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application, ostensibly requesting that the Court enjoin Naiman’s eviction-related

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actions against her. But after reviewing Rowe’s Complaint, the Court finds that she

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has failed to demonstrate that she will suffer irreparable harm without an emergency

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injunction. The Court therefore DENIES her Application.

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II.

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FACTUAL BACKGROUND

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On April 21, 2006, Rowe executed a promissory note and deed of trust in the

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name of non-defendant Encore Credit Corporation for the purchase of the property

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located at 19350 Sherman Way, Unit 216, Reseda, California 91335 (“the property”).

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(Compl. ¶¶ 5, 26.)

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Mutual Bank (“WaMu”).

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transferred the note into a mortgage-backed security, which was then sold off to

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investors around the world. (Id.)

Encore then sold Rowe’s loan to non-defendant Washington
(Id. ¶ 26.)

Rowe alleges that WaMu subsequently

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After WaMu failed, the Federal Deposit Insurance Company sold WaMu’s

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assets to JPMorgan Chase Bank, NA (“JPM”). (Id. ¶ 15.) But Rowe alleges that

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under the plain terms of that agreement, JPM did not become WaMu’s successor in

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interest. (Id. ¶ 15) Rather, Rowe asserts, since WaMu’s closure, the FDIC as receiver

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has controlled WaMu. (Id.) Accordingly, Rowe asserts JPM did not acquire WaMu’s

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mortgage-backed securities. (Id.)

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Rowe argues that despite the fact that her loan was transferred to the FDIC

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incident to the WaMu Receivership—and not in fact sold to JPM—Naiman instituted

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eviction proceedings on behalf of JPM. (Id. ¶ 16–17.) She asserts that JPM was able

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to obtain illegal title to the property by way of Naiman’s fraudulent sworn eviction

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complaints and representations that the foreclosure proceedings were in compliance

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with California Code of Civil Procedure section 2924. (Id. ¶ 27.)

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On March 25, 2009, California Reconveyance Company, acting as trustee,

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recorded a Notice of Default on the property and substituted JPM Specialty Mortgage,

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LLC as Trustee. (Id. ¶ 26.) On June 4, 2012, JPM Specialty Mortgage, as substituted

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trustee, sold the property to Homesales—a JPM company—for $130,785.00. (Id.

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¶ 29–31.)

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On April 52, 2014, Rowe filed this action against Naiman, alleging claims for

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common-law fraud; conspiracy to defraud; mail fraud, 18 U.S.C. § 1341; wire fraud,

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18 U.S.C. § 1343; racketeering, 18 U.S.C. § 1952; interstate transportation of stolen

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property 18 U.S.C. § 2314; unjust enrichment; civil conspiracy; and civil violation of

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the Racketeer Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962.

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(ECF No. 3.)

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Rowe also included an application for a temporary restraining order in her

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Complaint. She requests that the Court immediately enjoin “all eviction activity”

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engaged in by Naiman during the pendency of this litigation.
III.

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LEGAL STANDARD

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A court may issue a temporary restraining order upon a showing “that

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immediate and irreparable injury, loss, or damage will result to the movant before the

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adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose

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of such an order is solely to preserve the status quo and to prevent irreparable harm

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“just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods,

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Inc. v. Bhd. of Teamsters, 415 U.S. 423, 439 (1974).

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“The standard for issuing a temporary restraining order is identical to the

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standard for issuing a preliminary injunction.” Lockheed Missile & Space Co., Inc. v.

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Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see also Stuhlbarg

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Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n.7 (9th

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Cir.2001). A plaintiff seeking a preliminary injunction must establish (1) a likelihood

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of success on the merits; (2) a likelihood that plaintiff will suffer irreparable harm in

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the absence of preliminary relief; (3) that the balance of equities tips in his favor; and

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(4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council,

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555 U.S. 7, 20 (2008).

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The Ninth Circuit employs a “sliding scale” approach to Winter’s four-element

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test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

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Under this approach, a preliminary injunction may issue if the plaintiff raises “serious

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questions going to the merits” and demonstrates that “the balance of hardship tips

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sharply towards the plaintiff’s favor,” but only so long as the plaintiff also

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demonstrates that irreparable harm is likely—not just possible—and that the

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injunction is in the public interest. Id. (internal quotation marks omitted).

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Finally, “a preliminary injunction is an extraordinary remedy never awarded as

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of right.” Winter, 555 U.S. at 24. Thus, a district court should enter preliminary

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injunctive relief only “upon a clear showing that the plaintiff is entitled to such relief.”

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Id. at 22.
IV.

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DISCUSSION

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Rowe has not sufficiently established a likelihood of suffering irreparable harm

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for the Court to issue a temporary restraining order. “Speculative injury does not

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constitute irreparable injury sufficient to warrant granting a preliminary injunction.”

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Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). Thus, to

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secure a temporary restraining order, Rowe “must do more than merely allege

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imminent harm sufficient to establish standing; [she] must demonstrate immediate

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threatened injury as a prerequisite to preliminary injunctive relief.” Id.

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As evidence of irreparable injury, Rowe calls the Court’s attention to the June

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4, 2012 foreclosure sale. Rowe takes the position that she will suffer irreparable harm

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without a court order enjoining Naiman’s “eviction activity.” (Compl. ¶ 124.) But

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Rowe alleges that the property was sold at a trustee’s sale back in June 2012—nearly

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two years ago—after Naiman obtained a Writ of Execution. (Id. ¶ 16.) She also

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indicates that JPM has already paid for the property. (Id. ¶ 30.) Thus, it appears that

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all foreclosure-related activity has already occurred.
There is therefore no immediacy to Rowe’s request.

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With no pending

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foreclosure, there is no sale to restrain or enjoin. Rowe cannot obtain a temporary

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restraining order simply to have the Court adjudicate her claims at break-neck speed.

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She must instead allow Naiman to be served, answer, and defend against her claims.

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Due process demands that much. The Court thus finds that Rowe has not established

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a likelihood of suffering irreparable harm. Since the Court has found that Rowe has

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not established an element necessary for issuing a temporary restraining order, the

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Court need not opine on the remaining factors.
V.

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CONCLUSION

For the reasons discussed above, the Court DENIES Roe’s Application for a

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Temporary Restraining Order.

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IT IS SO ORDERED.

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April 29, 2014

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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