Irshad v. Argent Mortgage Company, L.L.C. et al

Filing 9

ORDER by Judge Claudia Wilken Denying 2 Motion for TRO (cwlc3, COURT STAFF) (Filed on 4/15/2010)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Kamran Irshad moves ex parte for a temporary restraining order prohibiting Defendants from conducting a trustee sale of his property located at 126 Red Cedar Lane, Union City, California on April 12, 2010. A temporary restraining order may be issued without providing the opposing party an opportunity to be heard only if "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." Fed. R. Civ. P. 65(b)(1)(A). "The standard for issuance of a v. ARGENT MORTGAGE, et al., Defendants. / KAMRAN IRSHAD, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. 10-01532 CW ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER

temporary restraining order is the same as that for issuance of a preliminary injunction." (N.D. Cal.). Burgess v. Forbes, 2009 WL 416843, at *2

To obtain a preliminary injunction, the moving party

must "establish that he is likely to succeed on the merits, that he

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def.

Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 374 (2008). Defendant Cal-Western Reconveyance Corp. (CWRC), the foreclosing trustee, recorded a Notice of Default against the said property on September 28, 2009. Comp. ¶ 21. Plaintiff received a However,

Notice of Sale by CWRC on January 7, 2010.

Id. ¶ 22.

Plaintiff waited until three days before the trustee sale to file an ex parte application for an order to halt the sale. of this application weighs against his request. The timing

Further, although

the balance of the harm tips toward Plaintiff, he has not presented the requisite showing of meritoriousness required for the Court to issue an injunction. Plaintiff's request for immediate ex parte If Plaintiff's request does not become

relief is therefore DENIED.

moot by the trustee sale, Plaintiff may file a regularly noticed motion for a preliminary injunction. IT IS SO ORDERED. See N.D. Cal. Civ. R. 7-2.

Dated: 04/15/10

CLAUDIA WILKEN United States District Judge

2