Farahani v. Floria et al

Filing 7

ORDER by Judge Ronald M. Whyte denying 4 Ex Parte Application (rmwlc2, COURT STAFF) (Filed on 9/10/2012)

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E-FILED on:

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9/10/12

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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No. 12-04637
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Fred Farmahin Farahani,

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Plaintiff.
ORDER DENYING REQUEST FOR A
TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION

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v.

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Ronald A. Florida, Adolfo Salazar, PLM
Lender Services,

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Defendants.
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Pro se plaintiff Fred Farmahin Farahani ("plainitff") was formerly currently a chapter 11
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debtor in case No. 08-52082 before Judge Roger Efremsky. On November 24, 2008, Judge
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Efremsky issued an order terminating the automatic stay pursuant to the bankruptcy laws as of
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December 31, 2008 to permit Mr. Farahani's secured creditor to foreclose on Mr. Farahani's real
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property at 1650 Pomona Avenue, San Jose, California. See In re Fred Farmahin Farahani, Case
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No. 08-52082-RLE, Docket No. 57, 1-2 (Bankr. N.D. Cal. Nov. 24, 2008). In an effort to stop the
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foreclosure, plaintiff later requested an temporary restraining order from this court, which was
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denied on December 30, 2008. See In re Fred Farmahin Farahani, Case No. C-08-05786-RMW,
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Dkt. No. 4 (N.D. Cal. Dec. 30, 2008). The case before Judge Efremsky closed on March 9, 2010.
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ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
No.12-04637

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The foreclosure sale apparently did not occur, and on June 17, 2009, plaintiff filed another

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bankruptcy petition before Judge Arthur Weissbrodt. On July 28, 2009, Judge Weissbrodt issued an

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order stating that if plaintiff did not pay the secured creditor approximately $13,000 by August 10,

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2009, the secured creditor could submit a Declaration of Default and an Order Terminating

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Automatic Stay to the bankruptcy court. See In re Fred Farmahin Farahani, Case No. 09-54725

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ASW, Docket No. 38 (Bankr. N.D. Cal. Aug. 25, 2008). It is not clear whether plaintiff made the

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required payments, but the parties continued any further hearing on the termination of the automatic

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stay through 2010 and 2011. On March 14, 2012, the parties entered a stipulation indicating that the

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stay would remain in effect as long as plaintiff continued to make specified monthly payments, and

United States District Court
For the Northern District of California

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that if plaintiff failed to do so, the secured creditor could submit a Declaration of Default and an

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Order Terminating Automatic Stay. See id., Docket No. 227. The stipulation also provided that "the

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foregoing terms and conditions ... shall be binding only during the pendency of this bankruptcy case.

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If, at any time the stay is terminated with respect to the Property by court order or by operation of

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law ... [the] Secured Creditor may proceed to enforce its remedies under applicable non-bankruptcy

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law against the Property and/or against the Debtor." Id.

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Judge Weissbrodt dismissed plaintiff's petition without prejudice on April 20, 2012, and the

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case closed on June 20, 2012. See id., Docket No. 246. On September 5, 2012, plaintiff filed the

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instant action, alleging "usurious lending practices and violations of the automatic stay" under the

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bankruptcy code, 11 U.S.C. § 362 et seq. See Dkt. No. 1 ¶ 1. On September 10, 2012, plaintiff filed

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the instant motion, seeking an injunction barring a foreclosure sale scheduled for the following day.

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The court finds plaintiff's motion without merit. Under the terms of the parties' stipulation,

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the stay preventing foreclosure of plaintiff's property was intended to apply only during the

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pendency of the bankruptcy case before Judge Weissbrodt. As both that case and plaintiff's case

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before Judge Efremsky have been dismissed, plaintiff is no longer entitled to rely on either the

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stipulation or the automatic stay provisions of Section 362. See 11 U.S.C. § 362(c); Richard v.

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Chicago, 80 B.R. 451, 453 (N.D. Ill. 1987) ("[A] stay lasts for the duration of a bankruptcy

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proceeding absent modification by the Bankruptcy Court."). Further, given that plaintiff ostensibly

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received notice of the foreclosure sale several months ago, the court is disinclined to entertain his
ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
No.12-04637

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eleventh-hour request for relief. Accordingly, the motion for a temporary restraining order and

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preliminary injunction is denied.

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It is so ordered.

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DATED:

9/10/12
RONALD M. WHYTE
United States District Judge

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United States District Court
For the Northern District of California

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ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
No.12-04637

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Dated:
Chambers of Judge Whyte

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United States District Court
For the Northern District of California

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ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
No.12-04637

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