Grossman v. JP Morgan Chase et al

Filing 12

Order by Hon. Samuel Conti denying 3 Motion for TRO.(sclc1, COURT STAFF) (Filed on 7/24/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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WILLIAM H. GROSSMAN,

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Plaintiff,
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v.
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JP MORGAN CHASE, WELLS FARGO,
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NA; CHASE HOME FINANCE, LLC;
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WASHINGTON MUTUAL BANK, FA;
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CALIFORNIA RECONVEYANCE
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COMPANY; FINANCIAL TITLE
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COMPANY; and all persons
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unknown claiming any legal or
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equitable right, title, estate, )
lien or interest in the
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property described in the
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complaint adverse to
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plaintiff's title or any cloud
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on Plaintiff's title thereto
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and DOES 1 through 100,
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inclusive,
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Defendants.
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Case No. 12-3532 SC
ORDER DENYING PLAINTIFF'S EX
PARTE APPLICATION FOR A
TEMPORARY RESTRAINING ORDER

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I.

INTRODUCTION
Plaintiff William H. Grossman ("Grossman" or "Plaintiff")

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brings this action in connection with the foreclosure of his

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property (the "Property") on June 28, 2011.

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is Plaintiff's ex parte application for a temporary restraining

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order ("TRO") to cancel the allegedly invalid foreclosure sale and

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enjoin Defendants from selling the property or evicting Plaintiff.

Now before the Court

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ECF No. 3 ("TRO App.").

Pursuant to Civil Local Rule 7-1(b), the

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Court finds this matter appropriate for determination without oral

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argument.

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Application.

For the reasons set forth below, the Court DENIES the

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II.

BACKGROUND
Plaintiff purchased the Property, which is located in Alamo,

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California, in 1986.

ECF No. 1 ("Compl.") at 5.

In December 2007,

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Plaintiff took out a $1,220,000 loan from Defendant Washington

United States District Court

For the Northern District of California

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Mutual Bank ("WaMu"), which was secured by the Property pursuant to

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a Deed of Trust.

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California Reconveyance Company, the trustee under the Deed of

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Trust, recorded a Notice of Trustee Sale, setting a sale date of

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November 16, 2010.

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unpaid balance and other charges on Plaintiff's loan totaled

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$1,383,206.66.

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took place on June 28, 2011.

App. Ex. A.

Id.

In October 2010, Defendant

App. Ex. B.

According to the notice, the

The trustee sale was postponed but eventually
ECF No. 4 ("Grossman Decl.") ¶ 3.

Plaintiff filed the instant action in federal court on July 6,

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2012, asserting causes of action for (1) quiet title; (2)

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fraudulent and wrongful foreclosure; (3) declaratory relief; (4)

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violation of California's Unfair Competition Law ("UCL"), Cal. Bus.

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& Prof. Code § 17200; (5) "injuction"; (6) cancellation of

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instruments; (7) unjust enrichment; (8) violation of the Truth-in-

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Lending Act, 15 U.S.C. § 1601 et seq.; (9) violation of the Real

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Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605; and

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(10) violation of California Civil Code section 2932.5.

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22.

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The gravamen of the Complaint and the TRO application is that

FAC at 12-

On the same day, Plaintiff filed his Application for a TRO.

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Defendants lacked standing to conduct the foreclosure sale since

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none of them can demonstrate they were a holder in due course of

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the promissory note endorsed by WaMu in connection with Plaintiff's

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loan.

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See TRO App. at 7-14; Compl. at 12.
There is no indication that Defendants have yet been served

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with process.

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III. DISCUSSION

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United States District Court

For the Northern District of California

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Under Federal Rule of Civil Procedure 65, a district court may
issue a TRO without notice to the adverse party only if:
(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

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(B) the movant's attorney certifies in writing any
efforts made to give notice and the reasons why it should
not be required.

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Fed. R. Civ. P. 65(b)(1).

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circumstances justifying the issuance of an ex parte TRO."

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Air Racing Ass'n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir.

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2006).

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adverse party is impossible either because the identity of the

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adverse party is unknown or because a known party cannot be located

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in time for a hearing."

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742 F.2d 314, 322 (7th Cir. 1984).

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be proper when "notice to the defendant would render fruitless the

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further prosecution of the action."

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F.2d at 322).

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"[C]ourts have recognized very few
Reno

An ex parte TRO may be appropriate "where notice to the

Id. (quoting Am. Can Co. v. Mansukhani,
Further, an ex parte order may

Id. (quoting Am. Can Co., 742

Here, Plaintiff has failed to establish a compelling reason

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for the Court to proceed ex parte.

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certified that he has made an effort to give notice to Defendants.

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Plaintiff's attorney has not

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There is no indication that providing notice to Defendants would be

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impossible or that such notice would frustrate the prosecution of

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this action.

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necessary to avoid irreparable harm.

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through a foreclosure sale over one year ago and Plaintiff was

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notified of Defendant's intention to proceed with the sale about

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two years ago.

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preliminary injunction.

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already taken place, it is unclear what harm would result if the

There is also no indication that immediate action is
Plaintiff's property was sold

Thus, Plaintiff has had ample time to apply for a
Additionally, as the foreclosure sale has

United States District Court

For the Northern District of California

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Court were to wait to hear from Defendants on this matter.

Even if

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Plaintiff has retained possession of the Property, he has offered

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no indication that an unlawful detainer action is pending against

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him or that Defendants have any plans to evict him in the immediate

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future.

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IV.

CONCLUSION

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For the reasons set forth above, the Plaintiff William H.

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Grossman's Application for a Temporary Restraining Order is DENIED.

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IT IS SO ORDERED.

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Dated:

July 24, 2012
UNITED STATES DISTRICT JUDGE

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