Eblovi et al v. Deutsche Bank National Trust Company

Filing 5

ORDER by Judge Charles R. Breyer denying 2 Motion for TRO; denying 2 Motion for Order to Show Cause. (crblc2, COURT STAFF) (Filed on 4/10/2013)

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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. CV 13-01596 CRB

DAVID C. EBLOVI ET AL.,

ORDER DENYING EX PARTE
APPLICATION FOR TEMPORARY
RESTRAINING ORDER

Plaintiffs,
v.

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DEUTSCHE BANK NATIONAL TRUST
COMPANY AS TRUSTEE FOR DSLA
15 MORTGAGE LOAN TRUST 2006-AR1 ET
AL.,
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Defendants.

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Plaintiffs David and Monica Eblovi have filed a single-count complaint alleging that
Defendants violated the Protecting Tenants at Foreclosure Act of 2009 (PTFA), Pub. L. No.
111-22, §§ 701-704, 123 Stat. 1660, 1632, 1660-62. See Compl. (dkt. 1). The Eblovis allege
that they were tenants under a valid residential lease agreement entitling them to occupy the
residence at 482 Coronado Avenue, Half Moon Bay, California, until at least 2014. Id. at 5.
According to the Eblovis, the property was sold at a trustee sale in February 2012, and the
Eblovis efforts to identify the new owners and continue making rent payments under the
terms of the lease were unsuccessful. Id. at 6. Defendants ultimately took ownership and
initiated unlawful detainer proceedings to evict the Eblovis. Id. at 7. The Eblovis
unsuccessfully litigated their eviction in state proceedings, id. at 7-8, and are scheduled to be
evicted at 6:00 a.m. on April 11, 2013, see TRO App. (dkt. 2) at 2.

The standard for issuing a temporary restraining order is well established: the party

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seeking relief must demonstrate that: (1) it is likely to succeed on the merits; (2) it is likely to

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suffer irreparable harm absent relief; (3) the balance of equities tips in its favor; and (4) the

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requested relief is in the public interest. Winter v. Natural Res. Defense Council, Inc., 555

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U.S. 7, 22 (2008). “[I]njunctive relieve [is] an extraordinary remedy that may only be

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awarded upon a clear showing that the [movant] is entitled to such relief.” Id. at 22. Under

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the Ninth Circuit’s “sliding scale” approach, the first and third elements can be balanced such

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that “serious questions” going to the merits and a balance of hardships that “tips sharply”

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towards the movant is sufficient so long as the other two elements are met. Alliance for the

United States District Court
For the Northern District of California

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Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).
Here, the Eblovis have not demonstrated a likelihood of success on the merits because

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there is no private right of action to enforce the PTFA. Though this Court is aware of no

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Ninth Circuit precedent on point, district courts in this circuit analyzing whether the PTFA

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provides a private right of action under the multi-factor test set out in Cort v. Ash, 422 U.S.

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66 (1975), have consistently held that no such right exists. E.g., Sotelo v. REO Capital Inv.

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& Asset Mgmt., Inc., No. 12-CV-04604-NC, 2012 WL 5269642, at *2 (N.D. Cal. Oct. 23,

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2012); Deutsche Bank Nat’l Trust Co. v. Eaddy, No. 12-CV-01845-YGR, 2012 WL

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4173987, at *1 (N.D. Cal. Sept. 18, 2012); Lopez v. DAPC LLC, No. 12-01575-EDL, 2012

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WL 2237227, at *3 (N.D. Cal. June 15, 2012); Nativi v. Deutsche Bank Nat’l Trust Co., No.

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09-06096-PVT (N.D. Cal. May 26, 2010). This Court agrees with the reasoning in those

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cases.

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Accordingly, the Eblovis have not met their burden of establishing their entitlement to

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the requested “extraordinary remedy,” and the Court DENIES their motion for a temporary

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restraining order (dkt. 2).

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IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: April 10, 2013
G:\CRBALL\2013\1596\order denying tro.wpd

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