Altmann v. Rushmore Loan Management Services LLC, et al.

Filing 13

ORDER signed by Judge Garland E. Burrell, Jr on 7/2/2015 DENYING 12 Motion for TRO. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERNIE ALTMANN,

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No. 1:15-cv-00880-GEB-GSA

Plaintiff,

ORDER DENYING EX PARTE MOTION
FOR TEMPORARY RESTRAINING ORDER

v.
RUSHMORE LOAN MANAGEMENT
SERVICES, LLC, a Delaware
Limited Liability Company;
WELLS FARGO BANK, a division
of Wells Fargo, N.A.; and
TRUSTEE CORPS,
Defendants.

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On July 2, 2015, Plaintiff filed an ex parte motion for

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a temporary restraining order (“TRO”), in which he seeks an order

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enjoining

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advertising[,] which will result in the eviction of Plaintiff

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from [his] home.” (Pl.’s TRO 3:4-5, ECF No. 12.) In support of

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the motion, Plaintiff argues:

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Defendants

from

“continuing

[their]

foreclosure

Plaintiff will suffer immediate and
irreparable injury if [D]efendant[s are] not
immediately
restrained
from
continuing
foreclosure by advertisement which will lead
to the eviction of Plaintiff[] from [his]
home for which [P]laintiff has no adequate
remedy at law. Until Plaintiff’s Motion for
Preliminary Injunction can be heard, an
eviction process will ensue which will result
in the depravation of Plaintiff’s legally
protected property and all trauma that goes
with it, including damage to Plaintiff’s
relationships,
reputation
within
the
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by

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community, and hindering the ability to
pursue
their
constitutionally
guaranteed
right to due process of law.

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There is a substantial likelihood that
[P]laintiff will prevail on the merits.
Plaintiff has proof via an expert forensic
investigation that the Plaintiff[] was not in
default at the commencement of foreclosure
activity and that the Defendant[s] continued
foreclosure activity without authority or
standing.

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The
threatened
harm
to
Plaintiff
outweighs the harm a temporary restraining
order would inflict on Defendant[s]. The
evidence proves that Plaintiff was not in
default and did not sustain injury at the
time foreclosure proceedings commenced. In
addition, Defendant[s are] not a real party
in
interest
and
[are]
merely
.
.
.
servicer[s] with no “stated or admitted”
financial stake in the foreclosure.

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Issuance of a temporary restraining
order is in the public interest, as the
consuming public, including [Plaintiff], will
continue to be harmed by violations and
conduct of the Defendant[s] . . . if the
relief requested herein is not granted.

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The court should enter this temporary
restraining
order
without
notice
to
Defendant[s] because Plaintiff will suffer
immediate and irreparable injury, loss, or
damage if the TRO is not granted before
[D]efendant[s] can be heard, and there is no
less drastic means to protect Plaintiff’s
interests.

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(TRO 2:10-25 (paragraph numbering omitted) (citations omitted).)

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A temporary restraining order is a provisional remedy

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intended to “preserv[e] the status quo and prevent[] irreparable

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harm

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injunction] hearing, and no longer.” Reno Air Racing Ass’n, Inc.

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v.

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quotation marks omitted) (quoting Granny Goose Foods, Inc. v.

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Bhd.

just

McCord,

of

so

long

452

as

F.3d

Teamsters

&

is

1126,

Auto

necessary

1131

Truck
2

to

(9th

hold

Cir.

Drivers,

415

a

[preliminary

2006)

U.S.

(internal

423,

439

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(1974)). To obtain a TRO, the movant must establish that “(1) [he

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is] likely to succeed on the merits; (2) [he is] likely to suffer

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irreparable harm in the absence of preliminary relief; (3) the

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balance of equities tips in [his] favor; and (4) a preliminary

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injunction is in the public interest.” Sierra Forest Legacy v.

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Rey,

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Natural Res. Def. Council, Inc., 555 U.S. 7, 19 (2008)).

577

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F.3d

1015,

Local
prescribes,

Rule

inter

1021

231

alia:

(9th

Cir.

concerns
“Except

2009)

the

in

(citing

issuance

the

most

Winter

of

v.

TROs.

It

extraordinary

of

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circumstances, no temporary restraining order shall be granted in

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the absence of actual notice to the affected party . . . or a

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sufficient showing of efforts made to provide notice.” E.D. Cal.

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R. 231(a) (citing Fed. R. Civ. P. 65(b)). Local Rule 231(c)

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further prescribes that “[n]o hearing on a temporary restraining

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order will normally be set unless” certain documents are provided

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to

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affidavit detailing the notice or efforts to effect notice to the

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affected parties or counsel or showing good cause why notice

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should not be given.”

the

Court

and

to

the

affected

parties,

including:

“an

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Here, Plaintiff neither provided notice to Defendants

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of his intention to file a TRO nor has shown good cause in an

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affidavit “why notice should not be given.”

E.D. Cal. R. 231(c).

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Moreover, Plaintiff has not shown his entitlement to

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the issuance of a TRO. Plaintiff has not “show[n] that a TRO

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[hearing]

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injunction [can be duly scheduled and] heard[;]” Plaintiff does

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not

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scheduled to occur. Baldwin v. Sebelius, No. 10CV1033 DMS (WMC),

is

indicate

necessary

in

the

TRO

before

when

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[a]

the

motion

referenced

for

preliminary

foreclosure

is

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2010

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Plaintiff’s conclusory statements in the TRO fail to show that

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“he is likely to succeed on the merits of his claim[s].” Fyock v.

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Sunnyvale, 779 F.3d 991, 995 (9th Cir. 2015); see Loop AI Labs,

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Inc. v. Gatti, No. 15-cv-00798-HSG, 2015 WL 1090180, at *3 (N.D.

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Cal.

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sufficient

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merits.”); accord Solomon v. Aurora Loan Servs., LLC, No. 2:12-

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00209 WBS KJN, 2012 WL 4747151, at *6 (E.D. Cal. Oct. 3, 2012).

WL

2384588,

Mar.

10

at

*2

(S.D.

12,

2015)

to

demonstrate

Cal.

(“Conclusory
a

June

10,

allegations

likelihood

of

2010).

Further,

alone

are

not

success

on

the

For the stated reasons, Plaintiff’s motion for a TRO,

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(ECF No. 12), is DENIED.

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Dated:

July 2, 2015

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