Lee et al v. PMC Bancorp et al

Filing 15

NOTICE and ORDER Setting Hearing on Temporary Restraining Order. Signed by Judge Hamilton on 10/19/2009. (pjhlc2, COURT STAFF) (Filed on 10/19/2009)

1 2 3 4 5 6 7 8 9 10 v. PMC BANCORP, et al., Defendants. _______________________________/ LEE, et al., Plaintiffs, No. C 09-4484 PJH NOTICE AND ORDER SETTING HEARING ON TEMPORARY RESTRAINING ORDER UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

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For the Northern District of California

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The court is in receipt of plaintiff's ex parte application for temporary restraining order and order to show cause re preliminary injunction. Plaintiff seeks an order temporarily restraining defendants PMC Bancorp, Quality Loan Service Corp, Capital Mortgage Group, and Aurora Loan Services (collectively "defendants") from foreclosing on, conducting a trustee sale on, and/or otherwise disposing of plaintiffs' residential property located at 236 Benham Drive, Martinez, California, 94553. A trustee sale is purportedly scheduled for October 23, 2009. The hearing on plaintiffs' motion for temporary restraining order is accordingly set for October 21, 2009, at 9:00 a.m., in Courtroom 3, 3rd Floor, Federal Building, 1301 Clay Street, Oakland, California 94612. The court furthermore notes, however, that plaintiffs have not yet filed a proof of service with the court adequately establishing defendants' receipt of the instant motion or complaint, nor have plaintiffs otherwise satisfactorily complied with the requirements of Federal Rule of Civil Procedure ("FRCP") 65(b). While plaintiffs have filed a supporting declaration of counsel and proof of service purporting to demonstrate service of the complaint and motion upon counsel for "Quality and Aurora" as well as "defendants," see

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Declaration of Kaiser U. Khan ISO Ex Parte App. for TRO, the actual proof of service submitted by counsel belies this claim. It affirms service of the motion alone (not the complaint), via mail upon an Andrew Hill at McCarthy & Holthus, and via fax upon Matthew Podmenik at McCarthy & Holthus. There is no Mr. Hill or Mr. Podmenik listed as counsel of record in this action, however, though a Mr. Andrew Hall is listed as counsel for defendant Aurora Loan Services, and this is presumably whom plaintiffs' counsel meant to serve. The court also notes that there is no proof of attempted service on counsel of record for defendant Quality Loan Service Corp. (represented by Mr. Seth Michael Harris, according to the docket), or upon defendants Capital Mortgage Group or PMC Bancorp, who do not seem to have even entered an appearance as yet. Despite plaintiffs' inability to demonstrate compliance with FRCP 65, and in view of the October 23 trustee sale scheduled by defendants, the court nonetheless schedules the instant motion for a hearing on shortened time, as indicated above. Plaintiffs are ORDERED, however, to serve (1) the complaint, (2) the instant motion papers, and (3) this order upon all defendants whom plaintiff seeks to enjoin by way of the instant motion immediately. In the event plaintiffs have already served defendants with the complaint and motion papers, plaintiffs need only serve defendant with a copy of this order. No later than 2:00 p.m. tomorrow, October 21, 2009, plaintiffs shall file a proof of service with this court indicating compliance with the foregoing. In any event, no hearing on plaintiffs' motion for temporary restraining order shall take place until all parties have been served. IT IS SO ORDERED. Dated: October 19, 2009 ______________________________ PHYLLIS J. HAMILTON United States District Judge

United States District Court

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For the Northern District of California

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