Lane v. CitiMortgage, Inc.

Filing 5

ORDER signed by Judge Kimberly J. Mueller on 10/2/2014 DENYING without prejudice 4 Ex Parte Application for Temporary Restraining Order.(Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MELODY LANE,

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No. 2:14-cv-2295 KJM KJN
Plaintiff,

v.

ORDER

CITIMORTGAGE, INC.,
Defendant.

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Plaintiff has filed an ex parte application for a temporary restraining order, seeking

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to restrain the sale of her home at 6771 Mount Murphy Road, Coloma, California. Mot., ECF No.

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4. She alleges the pending trustee sale would violate California’s Homeowner’s Bill of Rights

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(HBOR), Cal. Civ. Code § 2924.12, because her appeal from the denial of her request for a loan

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modification is still pending. ECF No. 4 at 3. A paralegal from counsel’s office avers she

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notified a person named Reggie at Citimortgage about the request for a restraining order and then

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faxed a copy of the plaintiff’s request to a number Reggie provided.

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A temporary restraining order may be issued upon a showing “that immediate and

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irreparable injury, loss, or damage will result to the movant before the adverse party can be heard

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in opposition.” FED. R. CIV. P. 65(b)(1)(A). The purpose of such an order is to preserve the

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status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no
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longer.” Granny Goose Foods, Inc. v. Int’l Bhd. of Teamsters, 415 U.S. 423, 439 (1974). In

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determining whether to issue a temporary restraining order, a court applies the factors that guide

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the evaluation of a request for preliminary injunctive relief: whether the moving party “is likely to

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succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief, . .

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. the balance of equities tips in [its] favor, and . . . an injunction is in the public interest.” Winter

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v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Stuhlbarg Int’l. Sales Co. v. John D.

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Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that the analysis for temporary

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restraining orders and preliminary injunctions is “substantially identical”).

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Under California’s HBOR, “[i]f a borrower submits a complete application for a

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first lien modification . . . a mortgage servicer . . . shall not record a notice of default, notice of

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sale, or conduct a trustee’s sale, while the complete first lien loan modification application is

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pending,” or during any appeal of a determination the borrower is not eligible for a modification.

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Cal. Civ. Code § 2923.6 (c)-(f).

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To secure the issuance of an injunction, a party must show the threatened injury is

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both likely and immediate. Winter, 555 U.S. at 22 (stating that “plaintiffs seeking preliminary

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relief [must] demonstrate that irreparable injury is likely in the absence of an injunction”)

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(emphasis in original); Caribbean Marine Servs. Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th

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Cir. 1988) (“A plaintiff must do more than merely allege imminent harm sufficient to establish

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standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to

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preliminary injunctive relief.”).

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In her moving papers, plaintiff alleges the trustee’s sale is scheduled for September

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8, 2014, ECF No. 4 at 3, or June 12, 2014. Id. at 6. The complaint also identifies September 8,

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2014 as the sale date. Compl., ECF No. 1 at 7 ¶ 38. As plaintiff has not shown she is facing

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immediate injury, her ex parte application for a temporary restraining order is denied without

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prejudice.

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IT IS SO ORDERED.
DATED: October 2, 2014.

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UNITED STATES DISTRICT JUDGE