Lew v. Long Beach Mortgage et al

Filing 15

ORDER signed by Judge Garland E. Burrell, Jr on 10/26/09 ORDERING that Plaintiff's Application for an Ex Parte Temporary Restraining Order 9 is DENIED. (Mena-Sanchez, L)

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

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

WAYNE LEW, Plaintiff, v. LONG BEACH MORTGAGE, PRO CAPITAL MORTGAGE, CALIFORNIA RECONVEYANCE COMPANY, JP MORGAN CHASE and DOES 1-100, inclusive,

) ) ) ) ) ) ) ) ) ) ) ) )

2:09-cv-02921-GEB-DAD ORDER DENYING PLAINTIFF'S APPLICATION FOR AN EX PARTE TEMPORARY RESTRAINING ORDER*

On October 20, 2009, Plaintiff Wayne Lew filed an ex parte application for a temporary restraining order ("TRO"), in which he requests that Defendants JP Morgan Chase and California Reconveyance Company be enjoined "from pursing foreclosure proceedings" on his residence and compelled to provide him with "all documents pertaining to any foreclosure proceeding[], Trustee's Sale, or assignment" of his residence or mortgage. (Appl. for TRO 1.) On October 23, 2009,

Plaintiff's ex parte application for a TRO was denied since Plaintiff failed to comply with Federal Rule of Civil Procedure 65(b)(1)'s

argument.

This matter is deemed suitable for decision without oral E.D. Cal. R. 78-230(h). 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

notice requirements.

This Order was not signed and filed until

October 23, 2009, because the undersigned judge thought it had been signed and filed earlier in the week. Following issuance of the October 23, 2009 Order, Plaintiff filed declarations for the apparent purpose of attempting to cure the notice deficiencies in his TRO application: declarations authored by Plaintiff, Plaintiff's attorney's and Judy DeLong. A hearing on

Plaintiff's application for a TRO was scheduled on October 23, 2009, for October 26, 2009 at 2:30 p.m. However, upon reviewing Plaintiff's

supplemental declarations, the hearing was vacated. Plaintiff declares in his October 23, 2009 declaration that he "received a Notice of Trustee's sale from California Reconveyance Company, on approximately Oct. 5, 2009, notifying [him] that [his] home was to be sold at a trustee's sale on October 27, 2009." Supp. Decl. ¶ 10.) (Lew

Plaintiff also declares he "had to leave town

[the] next week and [he] was not able to contact [his] attorney to assist [him] until October 16, 2009." (Id.) Plaintiff's attorney, Alex Friedland, declares "[o]n Monday, October 19, 2009, [he] telephoned and wrote to JP Morgan Chase informing them [about] this pending lawsuit. . . ." Docket No. 9, ¶ 2.) (Friedland Decl.,

Friedland also declares that on October 23, 2009,

he resent a "copy of the Complaint, Amended Application for Exparte Motion, via Federal Express to JP Morgan Chase, ProCapital Mortgage and California Reconveyance." (Id. ¶ 5.) In response to a minute order issued on October 23, 2009, Friedland provided an additional declaration stating that he "attempted to contact JP Morgan Chase in New York . . . . [He] talked to their switch board operator who gave [him] the number for their 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

Legal Department in Louisiana . . . .

However upon calling them they

advised [him] that I had reached the wrong department and that I should call [another number]. . . . offices were closed. I called that number but their I

I left them a message regarding the hearing.

did obtain their fax number . . . and faxed them the documents." (Friedland Decl., Docket No. 13, ¶ 3.) Lastly, Friedland declares he

called California Reconveyance and Pro Capital Mortgage but both were closed and he faxed both corporations a copy of the October 23, 2009 Minute Order and TRO application. (Id. ¶¶ 4-5.)

The declarations filed by Plaintiff detailing Plaintiff's attempts to provide notice to Defendants do not cure the notice deficiencies in his ex parte TRO application since Plaintiff has not demonstrated he has provided "actual notice" to the "affected part[ies]" or "counsel." E.D. Cal. R. 65-231(a)(prescribing `[e]xcept

in the most extraordinary of circumstances, no temporary restraining order shall be granted in the absence of actual notice to the affected party and/or counsel, by telephone or other means . . . ."). Plaintiff has not shown that the after hours calls and faxes are sufficient to satisfy the requirement that Defendants be provided timely, actual notice of Plaintiff's TRO application. it is unclear whether any application. Moreover, Local Rule 65-231(b) provides that "[i]n considering a motion for a temporary restraining order, the Court will consider whether the applicant could have sought relief by motion for . . . injunction at an earlier date without the necessity for seeking lastminute relief by motion for temporary restraining order. Should the At this time,

Defendant is aware of Plaintiff's TRO

Court find that the applicant unduly delayed in seeking injunctive 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

relief, the Court may conclude that the delay constitutes laches or contradicts the applicant's allegations of irreparable injury and may deny the motion solely on either ground." E.D. Cal. R. 65-231(b).

In this case, Plaintiff has not explained why he has delayed as long as he has to seek injunctive relief. Plaintiff indicates in his

TRO application that for some time after the initiation of his refinancing loan in 2006, he had been having "difficulty paying his mortgage." (Appl. for TRO 5:7.) He also declares that "[p]rior to

receiving the Notice of Trustee's sale, [he] contacted LONG BEACH MORTGAGE's successor WAMU in an attempt to restructure [his] loans." (Lew Supp. Decl. ¶ 11.) Plaintiff further declares that he "was put

off for an excess of six (6) months using a modification firm to assist [him]. Since that time, [he has] attempted numerous times to

work with JP Morgan Chase on a loan modification but [has] always been told paperwork was lost, no decision, underwriter would get back to [him] soon." (Id. ¶¶ 11, 12.)

Plaintiff also declares he received notice of the pending foreclosure sale on October 5, 2009 but did not contact his attorney until October 16, 2009, because he "had to leave town." Decl. ¶ 10.) (Lew Supp.

Plaintiff does not explain what caused him to leave

town, nor why he could not have given actual notice of and sought injunctive relief on an earlier date. Since Plaintiff has not shown justification for waiting until the eve of the foreclosure proceeding to attempt to give actual Defendants notice of his ex parte TRO application, has not shown that Defendants have received actual notice of his TRO application, and has failed to explain why his delay in seeking emergency injunctive relief does not

4

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

constitute laches, Plaintiff's application for an ex parte application for a TRO is DENIED. Dated: October 26, 2009

GARLAND E. BURRELL, JR. United States District Judge

5