Petrovich v. OCWEN Loan Servicing, LLC et al

Filing 8

ORDER Construing Plaintiff's Complaint as Containing an Ex Parte Request for Temporary Restraining Order and Denying the Request (emclc2, COURT STAFF) (Filed on 1/6/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Al Davis Petrovich

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Plaintiff
v.

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For the Northern District of California

United States District Court

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No. 15-CV-0033 EMC

Ocwen Loan Servicing, LLC, et al

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ORDER CONSTRUING PLAINTIFF'S
COMPLAINT AS CONTAINING AN EX
PARTE REQUEST FOR TEMPORARY
RESTRAINING ORDER AND DENYING
THE REQUEST

Defendants
___________________________________

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On January 5, 2015 Plaintiff Al Davis Petrovich filed the instant action alleging 14 causes of

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action against defendants revolving around Defendants' alleged misconduct in handling Plaintiff's

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mortgage and seeking to foreclose on Plaintiff's residence. According to the Complaint, Defendant

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Ocwen Loan Servicing, LLC has set January 7, 2015 as the date for the foreclosure sale of Plaintiff's

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property. Plaintiff's complaint includes references to Plaintiff seeking "emergency injunctive relief

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to enjoin the Defendants" from proceeding with the allegedly fraudulent or unlawful foreclosure.

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See, e.g., Complaint at 2 (Dkt. No. 1). For the following reasons the Court liberally construes

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Plaintiff's pro se complaint as including an ex parte request for a temporary restraining order and

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DENIES the request without prejudice.

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Issuance of temporary restraining orders in this district is governed by Civil Local Rule 65-1.
In relevant part, this rule provides:
(a) Documentation Required: An ex parte motion for a temporary restraining order
must be accompanied by:

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(1) A copy of the complaint;
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(2) A separate memorandum of points and authorities in support of the
motion;

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(3) The proposed temporary restraining order; and
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(4) Such other documents in support of the motion which the party
wishes the Court to consider.
(b) Notice to Opposition of Ex Parte Motion. Unless relieved by order of a Judge
for good cause shown, on or before the day of an ex parte motion for a temporary
restraining order, counsel applying for the temporary restraining order must deliver
notice of such motion to opposing counsel or party.

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N.D. Cal. Civ. Local Rule 65-1(a) & (b).
Plaintiff has wholly failed to comply with these provisions. First, Plaintiff has not submitted
a memorandum of points and authorities in support of his request for emergency injunctive relief,
explaining why an injunction should issue. Second, Plaintiff has not submitted a proposed

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For the Northern District of California

United States District Court

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temporary restraining order defining the scope of equitable relief sought. Finally, neither the

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Complaint nor any other filing on the docket reflects that Plaintiff afforded Defendants notice that he

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was seeking ex parte relief. Finally, Federal Rule of Civil Procedure 65(c) provides that a court may

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issue a temporary restraining order "only if the movant gives security in an amount that the court

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considers proper to pay the costs and damages sustained by any party found to have been wrongfully

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enjoined or restrained." Fed. R. Civ. P. 65(c). Plaintiff has posted no security. On these grounds

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alone, denial of Plaintiff's request for emergency injunctive relief is warranted. See, e.g., Wang v.

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Silver Wing Chinese Restaurant, No. 5:05 CV 4119 RS, 2009 WL 1033440, at *2 (N.D. Cal. Apr.

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16, 2009) (denying ex parte motion for temporary restraining order where movant failed to provide a

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proposed order, failed to provide defendant with notice, and did not post any security).

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Furthermore, the Court notes that Plaintiff filed the instant action on January 5, 2015 – a

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mere two days before the foreclosure sale he apparently seeks to enjoin. While the complaint

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includes conclusory allegations that Defendant had “assured Plaintiff that they would not proceed or

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continue with the foreclosure process” while they reviewed Plaintiff’s request for a loan

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modification and Plaintiff was “unaware that a date had been set for the trustee’s sale,” Plaintiff has

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wholly failed to allege specific facts demonstrating when he became aware of the foreclosure sale

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date and why he could not have pursued injunctive relief before this late date. In fact, many of the

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allegations in the complaint strongly suggest that Plaintiff was aware of the alleged irregularities in

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the handling of his mortgage or the foreclosure process well before January 5, 2015. See, e.g.,

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Complaint at 7 (“On October 15, 2014 OCWEN sent a package of irrelevant documentation [in

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response to an alleged qualified written request] thus failing to provide proper answers tot he

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requests from the Plaintiff.”); see also id. at 14 (noting that a notice of default, and two notice of

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sales had been filed by Defendants). Plaintiff’s failure to adequately explain this eleventh hour

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request for emergency injunctive relief further requires that his request be denied. See Purugan v.

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HSBC Bank USA, Nat’l Ass’n, No. C12-5168 SBA, 2012 WL 4845444, at *1 (N.D. Cal. Oct. 10,

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2012) (“Plaintiffs offer no explanation why they waited until only a week before the sale date to

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seek a TRO without notice. As such, any exigency is of Plaintiff’s own making.”).
For the foregoing reasons, Plaintiff’s request for emergency injunctive relief, construed as an

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For the Northern District of California

United States District Court

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ex parte request for a temporary restraining order is DENIED. This denial is without prejudice to

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Plaintiff properly bringing a request that complies with the Federal Rules of Civil Procedure and this

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Court’s local rules. Any renewed motion must present a clear articulation of (1) why Plaintiff

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delayed seeking injunctive relief until two days prior to the foreclosure sale sought to be enjoined

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and (2) why Plaintiff’s request meets the substantive standard governing requests for injunctive

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relief. See Roe v. Anderson, 134 F.3d 1400, 1401-02 (9th Cir. 1998) (stating that a party seeking an

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injunction has the burden of establishing: (1) a likelihood of success on the merits and the possibility

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of irreparable injury or (2) existence of serious questions going to the merits and the balance of

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hardships tipping in the movant's favor). To establish a sufficient showing on the merits of any

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renewed request, Plaintiff must provide specific factual evidence to support his claims. The

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allegations of the complaint as currently alleged are not sufficient. For example, the Complaint

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consists largely of unsupported conclusory allegations and, in places, contains contradictory

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allegations. Compare, e.g., Complaint at 12 (noting that the Defendants set a foreclosure sale date

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of January 7, 2015), with id. at 15 (noting that defendants “sold the Subject Property at a sale

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conducted without notice to Plaintiff”).

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IT IS SO ORDERED.

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Dated: January 6, 2015

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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