Sarantapoulas et al v. ReconTrust Company et al

Filing 6

ORDER by Judge Hamilton Denying [] Request for Temporary Restraining Order (pjhlc2, COURT STAFF) (Filed on 2/3/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DENNIS SARANTAPOULAS,
et al.,
Plaintiffs,

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For the Northern District of California

United States District Court

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v.

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RECONTRUST COMPANY, et al.,

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No. C 12-0564 PJH
ORDER DENYING REQUEST
FOR TEMPORARY RESTRAINING
ORDER

Defendants.
_______________________________/

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Plaintiffs Dennis Sarantapoulas and Daniel L. Wood (“plaintiffs”) filed this action on

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February 3, 2012, against defendants Recontrust Company and Bank of America, N.A., in

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connection with a mortgage loan issued to plaintiffs in spring 2005. The same day,

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plaintiffs filed an application for a temporary restraining order ("TRO"), seeking to prevent

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defendant from conducting a foreclosure sale on plaintiffs’ property located at 109 Cypress

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Ave., Dillon Beach, CA. The court finds that the application for the TRO must be DENIED.

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Preliminarily, plaintiffs have filed no proof of service of the summons and complaint

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on any defendant, nor have they satisfied the requirements for an ex parte motion brought

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pursuant to Federal Rule of Civil Procedure (“FRCP”) 65(b). Plaintiffs have not filed an

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affidavit or verified complaint that sets forth "specific facts . . . clearly show[ing] that

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immediate and irreparable injury, loss, or damage will result to the movant before the

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adverse party can be heard in opposition; or a written certification of the "efforts made to

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give service and the reasons why it should not be required." Fed. R. Civ. P. 65(b)

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(emphasis added). While plaintiffs’ declaration in support of the application for temporary

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restraining order does indicate that plaintiffs telephoned the offices of Recontrust Company

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and Bank of America’s foreclosure department, the declaration does not state plaintiffs

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were able to leave messages with any legal department, nor do plaintiffs explain why notice

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to the defendants should not be required. Moreover, plaintiffs’ messages, left with non-

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legal departments at both defendant companies, do not constitute sufficient proof of service

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of the summons and complaint and the TRO papers upon defendants.

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The court furthermore notes that denial of plaintiffs’ request is also warranted

issuance of a temporary restraining order on an ex parte basis, plaintiffs have nonetheless

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failed to establish that they are likely to succeed on the merits of the four underlying claims

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For the Northern District of California

because, even assuming that plaintiff had satisfied the procedural requirements for

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United States District Court

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they rely on in their request for a temporary restraining order, as required under Winter v.

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Natural Res. Defense Council, Inc. See 129 S. Ct. 365, 374 (2008)(to warrant injunctive

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

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips

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in his favor, and that an injunction is in the public interest"); see also Am. Trucking Ass'ns,

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Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009). In particular, plaintiffs

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have failed to do more than cursorily identify any particular claims for relief being stated

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against defendant; they have not proffered evidence or argument substantively

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demonstrating that plaintiffs satisfy the requirements necessary to succeed on any claim for

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relief. Thus, plaintiffs have failed at a minimum, to establish the critical elements of

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likelihood of success on the merits.

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In sum, because plaintiffs’ "ex parte" request for a temporary restraining order has

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failed to satisfy the procedural requirements of FRCP 65, or additionally meet the requisite

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substantive legal standard, plaintiffs’ request is accordingly hereby DENIED. If for any

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reason plaintiffs wish to proceed with a hearing on a motion for preliminary injunction (for

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instance if the foreclosure sale is postponed), plaintiffs may simply notice the motion on a

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35 day briefing schedule. Plaintiffs shall serve the complaint and summons in addition to

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such motion, on each defendant.

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IT IS SO ORDERED.

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Dated: February 3, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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