Christensen v. JP Morgan Chase Bank NA et al

Filing 16

ORDER by Judge Hamilton denying 10 Ex Parte Application.(pjhlc2, COURT STAFF) (Filed on 4/5/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAUL CHRISTENSEN,

v.

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ORDER DENYING PETITION TO
RESTRAIN FORECLOSURE SALE

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JP MORGAN CHASE BANK NA, et al.,

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United States District Court
Northern District of California

Case No. 16-cv-0976-PJH

Plaintiff,

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Defendants.

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On March 30, 2016, plaintiff Paul Christensen (“plaintiff”) filed his second “ex parte

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petition and memorandum of points and authorities in support of petition to restrain

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defendants’ foreclosure sale of plaintiff’s home.”1 Because the court does not issue

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restraining orders without notice to the other party absent the circumstances set forth in

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Federal Rule of Civil Procedure 65(b)(1) (which were not met in this case), the court

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ordered plaintiff to serve a copy of the petition upon defendants, and also set dates for an

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opposition brief and for a hearing.
On March 31, 2016, plaintiff filed a proof of service indicating that his counsel had

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served, via fax, the petition for a restraining order and the complaint. See Dkt. 12. The

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proof of service also stated “fax confirmation pages on file,” though no confirmation

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pages were actually filed with the court. Id. at 2. In a previous declaration, plaintiff’s

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Plaintiff’s first petition was filed on February 29, 2016. On the same day, the court
ordered that the petition be served on defendants by noon on March 1, 2016, to be
followed by a hearing on March 2, 2016. On March 1, 2016, plaintiff withdrew his petition
because he had filed a petition for Chapter 11 bankruptcy and had obtained an automatic
stay of the foreclosure sale. See Dkt. 9.

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counsel stated both that he “served the agents for service of process for defendants,” and

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also that he “received defendants’ facsimile number” from “defendants’ customer service

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phone number that is posted on defendants’ website and through defendant’s agent for

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process of service which I located through the Secretary of State of California.” See Dkt.

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10-2. This declaration is unclear as to whether service was effected upon defendants

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themselves or upon defendants’ agents for service of process – and moreover, plaintiff

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provides no indication that defendants (or its agents) consented to service by fax, as

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required by Federal Rule of Civil Procedure 5(b)(2).
At the hearing on April 5, 2016, an attorney named Scott Peebles appeared on

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plaintiff’s behalf. He is not counsel of record, but was making what he referred to as a

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United States District Court
Northern District of California

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“special appearance” because Peter Kutrubes was out of town. No explanation was

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offered for the non-appearance of Stephen Lin, who signed the ex parte petition and

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submitted a declaration in support thereof. In any event, Mr. Peebles could not answer

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the court’s questions regarding the adequacy of the service of process, nor why an

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appropriate declaration was not filed per Rule 65(b)(1) if service were to be excused. In

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short, plaintiff has not shown that service was adequate, and for that reason alone, his

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petition must be DENIED.

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Additionally, even putting aside the deficiencies with respect to service, plaintiff’s

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papers do not even attempt to meet the legal standard for temporary restraining orders –

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namely, that plaintiff is likely to succeed on the merits, that he is likely to suffer

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

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his favor, and that an injunction is in the public interest. Winter v. Natural Resources

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Defense Council, Inc., 129 S.Ct. 365, 374 (2008); see also Stuhlbarg Int’l Sales Co., Inc.

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v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001) (applying the

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preliminary injunction standard to TROs). Plaintiff’s “memorandum of points and

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authorities” contains neither points nor authorities; there is no discussion of the relevant

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legal standard, nor any attempt to explain why he is likely to succeed on the merits of any

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of the seven causes of action asserted in the complaint. Accordingly, putting aside the
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ser
rvice deficie
encies and evaluating the merits of plaintiff’s request, t petition must be
s
the

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DE
ENIED.

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IT IS SO ORDER
S
RED.
Da
ated: April 5, 2016
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__________
__________
__________
_______
PH
HYLLIS J. H
HAMILTON
Un
nited States District Ju
s
udge

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United States District Court
Northern District of California

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