Nadaf-Rahrov v. Shellpoint Mortgage Servicing et al

Filing 32

TEMPORARY RESTRAINING ORDER AND ORDER TO MEET AND CONFER RE BRIEFING SCHEDULE FOR PRELIMINARY INJUNCTION. Preliminary Injunction Hearing set for 11/22/2016 at 10:00 AM. Signed by Judge Richard Seeborg on 11/2/16. (cl, COURT STAFF) (Filed on 11/2/2016)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 ENAYATOLLAH NADAF-RAHROV, et al., Plaintiffs, United States District Court Northern District of California 11 12 13 14 Case No. 16-cv-02112-RS Case No. 16-cv-06323-RS v. SHELLPOINT MORTGAGE SERVICING, et al., TEMPORARY RESTRAINING ORDER AND ORDER TO MEET AND CONFER RE BRIEFING SCHEDULE FOR PRELIMINARY INJUNCTION Defendants. 15 16 17 The earlier-filed of these two related actions was randomly assigned to the undersigned in 18 April of this year. The second case, filed yesterday, was randomly assigned to the Honorable 19 James Donato. In light of the undersigned’s unavailability, the duty judge acted on the motion to 20 relate the two cases and granted it. 21 As the parties are aware, prior to the cases being related, an order issued requiring the 22 parties to meet and confer to attempt to negotiate an agreement for a brief postponement of the 23 pending foreclosure sale, to permit full briefing and consideration of plaintiffs’ request for 24 preliminary relief. While that order did not require the parties to reach an agreement for 25 postponement of the sale, it did require a meet and confer effort to be made in good faith. Copies 26 of email correspondence submitted by plaintiffs indicate that defendants elected simply to 27 disregard the obligation imposed by that order, and advised plaintiffs that they “decline[d] to 28 waste any more time with meeting and conferring after we were unable to reach a resolution at the 1 mediation on Monday.” As a result, plaintiffs’ applications for a temporary restraining order in 2 the two cases are ripe for decision. 3 An application for preliminary relief requires the plaintiff to “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 5 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 6 Winter v. N.R.D.C., Inc., 555 U.S. 7, 21-22 (2008). The Ninth Circuit has clarified, however, that 7 courts in this Circuit should still evaluate the likelihood of success on a “sliding scale.” Alliance 8 for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (“[T]he ‘serious questions’ 9 version of the sliding scale test for preliminary injunctions remains viable after the Supreme 10 Court’s decision in Winter.”). As quoted in Cottrell, that test provides that, “[a] preliminary 11 United States District Court Northern District of California 4 injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the 12 merits were raised and the balance of hardships tips sharply in the plaintiff’s favor,” provided, of 13 course, that “plaintiffs must also satisfy the other [Winter] factors” including the likelihood of 14 irreparable harm. Id. at 1135. 15 Here, the potential irreparable harm to plaintiffs arising from a foreclosure sale is manifest, 16 and the issue is whether they have made an adequate showing on the merits to warrant relief. 17 Defendants have presented compelling arguments as to the merits in both cases, and have 18 appropriately questioned plaintiffs’ failure to act more expeditiously. Nevertheless, balancing all 19 of the circumstances, a twenty-day postponement of the foreclosure sale is warranted, and 20 defendants are hereby restrained and enjoined from proceeding with the sale prior to November 21 23, 2016. In light of the entire record, no bond will be required. 22 Plaintiffs may file further papers in support of an application for a preliminary injunction 23 in either or both cases no later than November 7, 2016. Defendants may file opposition by 24 November 14, 2016. A hearing will be calendared for November 22, 2016, at 10:00 a.m., but the 25 Court reserves discretion under Civil Local Rule 7-1(b) to decide the matter without oral 26 argument. 27 28 CASE NO. 2 16-cv-02112-RS 1 IT IS SO ORDERED. 2 3 4 5 Dated: November 2, 2016 ______________________________________ RICHARD SEEBORG United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NO. 3 16-cv-02112-RS

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