Sirrium v. Tomkinson, et al

Filing 3

ORDER signed by District Judge Troy L. Nunley on 5/21/2013 DENYING 1 Motion for Temporary Restraining Order. (Donati, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

Sirrum
pro per

No. 2:13-cv-00986 TLN-CMK
Plaintiff,
Petitioner

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER

v.
JOSEPH R. TOMKINSON and/or his
successor, individually, and in his official
capacity as CEO OF IMPAC FUNDING
CORP dba IMPAC FUNDING GROUP
19500 Jamboree Rd
Irvine, CA 92612
BILL BECKMANN and/or his successor,
Individually, and in his official capacity as
PRES/CEO OF MERS
1901 East Voorhess, Ste. C
Danville, IL 61834
BRIAN T. MOYNIHAN, and/or his
successor, individually, and in his official
capacity as PRES/CEO OF BAC HOME
LOANS SERVICING, LP,/ BANK OF
AMERICA N.A., & RECONTRUST CO.,
subsidiary of BANK OF AMERICA
100 North Tryon Street
Charlotte, NC 28255
RECONTRUST COMPANY, fully owned
by BANK OF AMERICA
2380 Performance Drive
Richardson, TX 75082
1

1

4

SETH WAUGH and/or his successor,
individually, and in his official capacity as
PRES/CEO of DEUTSCHE BANK
NATIONAL TRUST COMPANY
1761 E. St. Andrews Place
Santa Ana, CA 92705

5

Does 1-2000, et al

2
3

6

Defendants.

7
8

This matter comes before the Court on Plaintiff Sirrium’s “Emergency Ex Parte Petition

9

Emergency TRO” (“TRO Application”). (ECF No. 1.) Plaintiff Sirrium (“Plaintiff”) appearing

10

pro per asks the Court to stop her eviction scheduled for Wednesday May 22, 2013. Defendants

11

appear to be companies Impac Funding Group, MERS, Bank of America N.A., Recontrust Co.,

12

and Deutsche Bank National Trust Co., and their chief executive officers, Joseph R. Tomkinson,

13

Bill Beckmann, Brian T. Moynihan, and Seth Waugh. 1 Defendants have not had an opportunity

14

to respond to this TRO Application filed less than 48 hours from Plaintiff’s alleged eviction date.
Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

15
16

520-21 (1972), they are not immune from the Federal Rules of Civil Procedure. See Ghazali v.

17

Moran, 46 F.3d 52, 53-54 (9th Cir. 1995). To qualify for a temporary restraining order, the

18

moving party must demonstrate (1) a probability of success on the merits and the possibility of

19

irreparable harm, or (2) that the lawsuit raises serious questions and the balance of hardship tips

20

sharply in the movant's favor. See Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (9th Cir.

21

1986); Regents of Univ. of Cal. v. American Broadcasting Companies, Inc., 747 F.2d 511, 515

22

(9th Cir. 1984); see also Fed. R. Civ. P. 65.

23

The Eastern District of California Local Rules impose additional requirements for a

24

temporary restraining order. Under Local Rule 231(b) “[i]n considering a motion for a temporary

25

restraining order, the Court will consider whether the applicant could have sought relief by

26

motion for preliminary injunction at an earlier date without the necessity for seeking last-minute

27

1

28

It is not clear whether Plaintiff means to sue the companies only, their CEOs or both, but for purposes of this Order,
this Court will construe the pleadings liberally where the petitioner is appearing pro se. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972).

2

1

relief by motion for temporary restraining order. Should the Court find that the applicant unduly

2

delayed in seeking injunctive relief, the Court may conclude that the delay constitutes laches or

3

contradicts the applicant's allegations of irreparable injury and may deny the motion solely on

4

either ground.” E.D. Cal. L. R. 231(b); see also Lamon v. Pliler, No. CIVS03-0423FCD-CMK-P,

5

2006 WL 120088, at *2 (E.D. Cal. Jan. 12, 2006) (recommending injunctive relief be denied),

6

injunctive relief denied as moot and report adopted by 2006 WL 2583277 (E.D. Cal. Sept. 6,

7

2006).

8
9

The Court has considered the TRO Application and the supporting documentation. The
Court denies the TRO Application. First, Plaintiff fails to show any likelihood of success on the

10

merits. See Winters v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (“A

11

plaintiff seeking a preliminary injunction must establish that [s]he is likely to succeed on the

12

merits. . . .”). Plaintiff’s TRO Application only states that “[a]ll of the allegations and beliefs are

13

well founded and well supported with evidence. The crimes and violations involved in this case

14

are supported by clear merits and foundation when analyzed by an unbiased professional such as

15

a judge. All of the claims can be proven to be with strong merits.” (ECF No. 1, 20:16-20.)

16

However, the TRO Application is largely incomprehensible, consisting of long excerpts of

17

exhibits, news articles, and legal documents from other cases. At best, the TRO Application

18

appears to allege that the Defendants’ had no legal right to transfer or assign her mortgage to

19

anyone, and alleges that Defendants and other third party individuals violated various laws in

20

doing so. However, Plaintiff’s claims for relief, even if true, do not explain how these violations

21

led to the allegedly improper foreclosure sale of Plaintiff’s property and eviction.

22

Moreover, Plaintiff provides no explanation as to why she waited to file this TRO

23

Application on the eve of eviction. Several documents attached to Plaintiff’s TRO Application

24

indicate that she has had ample time to mount a legal challenge to Defendants’ loan and

25

foreclosure practices:

26



In a letter from Bank of America dated August 20, 2012, Bank of America informs

27

Plaintiff that her loan was referred to foreclosure on March 25, 2011, and the property

28

went into foreclosure sale on February 17, 2012. (ECF No. 1, 60.)
3

1



2
3

2011. (ECF No. 1, 75-77.)


4
5

A “Notice of Trustee’s Sale” to take place on July 27, 2011, recorded date of July 5, 2011.
(ECF. No. 1, 79-80.)



6
7

A“Notice of Default and Election to Sell Under Deed of Trust,” recorded date of April 4,

A “Trustee’s Deed Upon Sale” reading that the trustee sold real property at a public action
on February 17, 2012, recorded date of March 13, 2012. (ECF No. 1, 92-94.)



8

Plaintiff also sent several letters to Defendants and other third parties regarding this
property on January 6, 2013. (ECF No. 1, 96-108.)

9

In light of the above, the Court concludes that Plaintiff’s unexplained delay in bringing her TRO

10

Application constitutes laches, she has unreasonably delayed in seeking injunctive relief, and her

11

actions contradict the allegations of irreparable injury.
For the reasons set forth above, Plaintiff’s Application for a Temporary Restraining Order

12
13

is DENIED.

14
15

IT IS SO ORDERED.
Dated:

May 21, 2013

16
17

Troy L. Nunley
United States District Judge

18
19
20
21
22
23
24
25
26
27
28
4