Thoreau de la Salle v. America's Wholesale Lender, et al

Filing 34

ORDER signed by Judge Morrison C. England, Jr on 04/14/10 ORDERING that the 30 Motion for TRO is DENIED without prejudice. (Williams, D)

1 2 3 4 5 6 7 8 9 10 11 Plaintiff, 12 v. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMERICA'S WHOLESALE LENDER; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; RECONTRUST COMPANY, N.A.; BAC HOME LOANS SERVICING, LP; JOHN OR JANE DOES 1 through 100, Defendants. ----oo0oo---Presently before the Court is Plaintiff's Ex Parte Application for Temporary Restraining Order and Preliminary Injunction ("Application") pursuant to Federal Rule of Civil Procedure 65(b). Plaintiff Berenice Thoreau De La Salle MEMORANDUM AND ORDER BERENICE THOREAU DE LA SALLE, No. 2:09-cv-02701-MCE-KJM UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

("Plaintiff") seeks to enjoin Defendants America's Wholesale Lender, Mortgage Electronic Registration Systems, Inc., ReconTrust Company N.A. and BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP, LLC ("Defendants") from conducting a non-judicial foreclosure sale of her home, currently scheduled for 2:00 p.m., April 16, 2010. 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Issuance of a temporary restraining order, as a form of preliminary injunctive relief, is an extraordinary remedy, and Plaintiffs have the burden of proving the propriety of such a remedy by clear and convincing evidence. See Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442 (1974). Certain prerequisites must

be satisfied prior to issuance of a temporary restraining order ("TRO"). See Granny Goose Foods, Inc. v. Brotherhood of

Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974) (stating that the purpose of a TRO is "preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing [on the preliminary injunction application], and no longer"). In general, the showing required for a temporary restraining order is the same as that required for a preliminary injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 (9th Cir. 2001). Following the Supreme Court's

decision in Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the party requesting preliminary injunctive relief must show that "he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." /// /// /// /// /// 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 129 S.Ct. at 374; see also American Trucking Assocs. Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 ("To the extent that our cases have suggested a lesser standard [than that required for injunctive relief by Winter], they are no longer controlling, or even viable."). The Court has reviewed Plaintiff's Ex Parte Application for Temporary Restraining Order ("TRO"). Plaintiff has failed to

show the requisite likelihood of success on the merits to warrant equitable relief. Prior to Plaintiff's Application for TRO, Defendants moved to dismiss Plaintiff's Complaint in its entirety for failure to state a claim upon which relief may be granted. On April 13,

2010, Magistrate Judge Kim Mueller issued Findings and Recommendations granting Defendants' Motion. While the Court need not at this time formally adopt Judge Mueller's findings, as a result of the request for a Temporary Restraining order, the recommendation dismissing Plaintiff's claims serves as an indication that such claims fall short of the "likelihood of success" necessary for granting a TRO. Rather,

the magistrate judge questioned the legal sufficiency of each of Plaintiff's eleven causes of action. The Court can not, on these grounds, provide Plaintiff the extraordinary relief requested. The very purpose of a TRO is to

preserve the status quo, which in this case is one where Plaintiff's home was contracted as a security interest for her mortgage loan. /// 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Thus to enjoin Defendants from exercising its rights over said security interest, without clear legal justification, would not preserve, but drastically alter, the status quo. Consequently, for the reasons stated above, Plaintiff's Application for Temporary Restraining Order is DENIED without prejudice. IT IS SO ORDERED. Dated: April 14, 2010

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

4