Lew v. Long Beach Mortgage et al

Filing 8

ORDER DENYING 3 Motion for TRO signed by Judge Garland E. Burrell, Jr on 10/23/2009. (Matson, R)

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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,

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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 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.)

Under Federal Rule of Civil Procedure 65(b)(1), a TRO may be issued "without written or oral notice to the adverse party only if

argument.

This matter is deemed suitable for decision without oral E.D. Cal. R. 78-230(h). 1

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(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." See also 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, or a sufficient showing of efforts made to provide notice"). There are "very few Reno Air

circumstances justifying the issuance of an ex parte TRO."

Racing Ass'n., Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). Plaintiff states in his TRO application that Judy DeLong declares she provided "a copy of [Plaintiff's] Application to [Defendant] JP Morgan Chase via US Mail . . . and [Defendant] CALIFORNIA RECONVEYANCE CO . . . on October 19th, 2009." (TRO Appl. 5.) The referenced Further,

declaration of Judy Delong, however, has not been filed.

Plaintiff declares he has been notified that his residence is to be sold at a foreclosure sale occurring on October 27, 2009 but fails to state when he received notice of the pending sale, or why he did not seek injunctive relief earlier. The mailed notice that Plaintiff indicates he gave to two of the Defendants by placing his TRO application in the mail "on October 19th 2009" does not satisfy the notice requirements of Federal Rule of Civil Procedure 65(b)(1). Further, Plaintiff's application says

nothing about providing Defendants Long Beach Mortgage and Pro Capital Mortgage with notice of Plaintiff's request for a TRO. Plaintiff also

has not filed an affidavit detailing the efforts made to give timely 2

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notice of his TRO application to Defendants or stating the reasons notice should not be required. Nor has Plaintiff explained why he

delayed seeking injunctive relief until seven days before the foreclosure proceeding he seeks to enjoin is scheduled to occur. E.D. Cal. R. 65-231(b)(stating "[s]hould the Court find that the applicant unduly delayed in seeking injunctive relief, the Court may conclude that the delay constitutes laches . . ."). Plaintiff, See

therefore, "has failed to present persuasive evidence demonstrating that his case falls within the `very few circumstances' justifying the issuance of an ex parte TRO.'" Rosal v. First Federal Bank of

California, 2009 WL 837570, at *1 (N.D. Cal. Mar. 26, 2009). For the reasons stated above, Plaintiff's ex parte application for a TRO is DENIED. Dated: October 23, 2009

GARLAND E. BURRELL, JR. United States District Judge

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