Pinoli v. OneWest Bank F.S.B. et al

Filing 22

ORDER by Judge Charles R. Breyer denying 19 Ex Parte Application. (crblc1, COURT STAFF) (Filed on 6/23/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 11-01645 CRB

WAYNE PINOLI,

ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER

Plaintiff,
v.
ONEWEST BANK F.S.B. ET AL,
Defendants.

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Plaintiff Wayne Pinoli has filed a Motion for a Temporary Restraining Order asking

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the Court to enjoin an unlawful detainer trial that is set to begin tomorrow in state court.

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This Motion is DENIED because it does not meet the requirements for relief. See generally

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 374 (2008); Alliance

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for Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 3665149, *8 (9th Cir. Sept. 22, 2010).

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In this Circuit, “‘serious questions going to the merits’ and a hardship balance that tips

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sharply toward the plaintiff can support issuance of an injunction, assuming the other two

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elements of the Winter test are also met.” Alliance for the Wild Rockies, 622 F.3d at 1052.

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Even assuming that the other elements have been met, and even though the balance of

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hardships undoubtedly tips in favor of Plaintiff, who faces eviction, Plaintiff has not raised

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serious questions going to the merits.

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Specifically, Plaintiff’s case turns largely on his allegation that Defendants improperly

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denied him a permanent loan modification following the successful completion of a trial loan

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modification. See Compl. (dkt. 1) ¶ 43. But Plaintiff has not demonstrated a likelihood of

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succeeding in his argument that he was entitled to a permanent loan modification. Moreover,

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the Court notes that the only basis for its jurisdiction is Plaintiff’s claim under the Real Estate

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Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605, et seq. But Plaintiff has not

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demonstrated a likelihood of succeeding in his argument that his letters to Defendants

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constitute qualified written requests under RESPA. Because Plaintiff has failed to raise

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serious questions going to the merits, injunctive relief is not appropriate at this time.

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Accordingly, the Motion for Temporary Restraining Order is DENIED.

United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: June 23, 2011

CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

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G:\CRBALL\2011\1645\tro order.wpd

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