Harms et al v. Recontrust Company, N.A. et al

Filing 18

ORDER by Judge Claudia Wilken Denying 15 Ex Parte Motion for TRO (cwlc3, COURT STAFF) (Filed on 6/21/2010)

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 v. RECONTRUST COMPANY, N.A., et al., Defendants. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DALE HARMS, et al., Plaintiffs, No. 10-01598 CW ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiffs Dale and Laurie Harms move ex parte for a temporary restraining order prohibiting Defendants from conducting a trustee sale of Plaintiffs' property located at 930 W. Cypress Rd., Oakley, CA 94561. 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

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 is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest."

Winter v. Natural Res. Def.

Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 374 (2008). Plaintiffs have failed to demonstrate that a temporary restraining order should be issued. First, Plaintiffs argue that

Defendants have no standing to foreclose on their house because Defendants do not presently own or possess the promissory note secured by the deed of trust. However, possession of the note does

not necessarily affect the validity of a non-judicial foreclosure sale. Roque v. Suntrust Mortgage, Inc., 2010 WL 546896, *3 (N.D.

Cal.) ("Uniformly among courts, production of the note is not required to proceed in foreclosure and similarly no production of any chain of ownership is required."). Second, Plaintiffs have not

submitted any evidence demonstrating that they have a viable claim to enjoin the foreclosure sale, and thus it is impossible to find that they are likely to succeed on the merits. Second, they have

not identified the date of any potential foreclosure sale or eviction, and thus have not demonstrated that they are likely to suffer irreparable harm if Defendants are given an opportunity to oppose preliminary injunctive relief. Third, even if Defendants

violated California law, Plaintiffs have not shown that enjoining foreclosure proceedings would be an appropriate remedy. // // // // // // 2

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Plaintiffs' request for immediate ex parte relief is therefore DENIED. If Plaintiffs seek a preliminary injunction, they must

serve the summons and complaint on any Defendant against whom relief is sought. They must then file a properly noticed motion See N.D. Cal. Civ. R. 7-2.

under the Civil Local Rules.

IT IS SO ORDERED. Dated: 06/21/10 CLAUDIA WILKEN United States District Judge

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