Abels v. Bank of America et al

Filing 77

ORDER by Judge Yvonne Gonzalez Rogers denying without prejudice 65 Temporary Restraining Order and request for Preliminary Injunction (fs, COURT STAFF) (Filed on 4/6/2012)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 7 8 9 ALISON M. ABELS, 10 Plaintiff, Case No.: 11-CV-208 YGR ORDER DENYING TEMPORARY RESTRAINING ORDER Northern District of California United States District Court 11 12 vs. 13 BANK OF AMERICA, N.A., et al., 14 Defendants. 15 16 Plaintiff Alison Abels (“Plaintiff”) filed her Application for Order Shortening Time as to a 17 preliminary injunction (Dkt. No. 63) on March 28, 2012. The Application was accompanied by a 18 Certificate in Support of Application for Order Shortening Time, in which Plaintiff declared that: the 19 Trustee Sale of the property at issue in this litigation was scheduled for April 9, 2012; the trustee was 20 acting in bad faith since it had notice of the Court’s order granting leave to amend the complaint; that 21 she advised counsel for the trustee of her intention to make her application to shorten time; and that 22 she had not received a response from the trustee. (Dkt. No. 63-2.) 23 The Court deemed the Application to be a request for temporary restraining order and request 24 for order to show cause re: preliminary injunction. By order issued March 30, 2012, Plaintiff was 25 directed to file and serve “memorandum of points and authorities, declaration in support and any 26 other papers in support” of a temporary restraining order and order to show cause re: preliminary 27 injunction no later than Monday, April 2, 2012. (Dkt. No. 64.) 28 1 On April 3, 2012, Plaintiff filed a memorandum of points and authorities (Dkt. No. 65) and 2 an amended memorandum of points and authorities (Dkt. No. 66). No declarations or other 3 supporting documents were filed by Plaintiff in connection with the request for a temporary 4 restraining order. 5 Defendant Bank of America, N.A. filed its opposition on April 4, 2012. 6 The parties appeared in person for hearing on April 5, 2012, Plaintiff appearing in pro per 7 8 9 and Defendant Bank of America, N.A. appearing by counsel John Pingel, Esq. The Court has carefully considered the pleadings in this matter, the arguments at the hearing, as well as the papers submitted in support of and in opposition to the request for temporary Northern District of California restraining order and those papers submitted with the initial Application. The Court DENIES the 11 United States District Court 10 request for a temporary restraining order without prejudice to Plaintiff making a sufficient showing 12 in support of such relief at a future date. 13 Requests for temporary restraining orders are governed by the same general standards that 14 govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 15 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg lnt'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 16 F.3d 832, 839 n. 7 (9th Cir. 2001). A preliminary injunction is an “extraordinary and drastic 17 remedy,” that is never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-690 (2008) (internal 18 citations omitted). Whether seeking a temporary restraining order or a preliminary injunction, a 19 plaintiff must establish four factors: (1) that she is likely to succeed on the merits; (2) that she is 20 likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities 21 tips in her favor; and (4) that an injunction is in the public interest. Winter v. Natural Resources 22 Defense Council. Inc., 555 U.S. 7, 20 (2008). 23 With respect to the success on the merits and balance of harms factors, courts will permit a 24 plaintiff making a strong showing on one factor to offset a weaker showing on the other, so long as 25 all four factors are established. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1 1 3 5 (9th 26 Cir. 2011). For example, if the balance of hardships tips sharply in plaintiff’s favor, she may 27 satisfy the likelihood of success factor by showing that there are at least “serious questions” 28 favoring the merits of her claim. Id. However, even a lesser showing of a “serious question” 2 1 requires evidence that the plaintiff “has a fair chance of success on the merits.” Sierra On-Line, 2 Inc. v. Phoenix Software. Inc., 739 F.2d 1415, 1421 (9th Cir. 1984). 3 Here, the irreparable harm to Plaintiff is clear from the face of the complaint and the papers 4 submitted – her home will be sold at a trustee’s sale absent a temporary injunction. The balance of 5 hardships appears to tip strongly in her favor. However, Plaintiff has not offered any evidence in 6 support of her request for a temporary restraining order – even so much as to raise a “serious 7 question” -- which she must do in order to establish a likelihood of success on her claims. Having 8 failed to do so, the Court cannot grant temporary injunctive relief in her favor. 9 10 IT IS SO ORDERED. April 6, 2012 Northern District of California United States District Court 11 12 13 ___________________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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