Newsom et al v. JP Morgan Chase Bank, NA et al

Filing 4

ORDER Denying 2 Ex Parte Motion for TRO and Order to Show Cause Re: Preliminary Injunction. In sum, even if Plaintiffs had met the notice requirements, Plaintiffs have failed to show that they are likely to succeed on the merits of their claims , that the balance of equities tips in their favor, or that granting the motion is in the public's interest. As such, the Court shall not issue a TRO, or any further injunctive relief at this time. Signed by Judge Michael M. Anello on 9/20/2012. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN and ANNA NEWSOM,

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Plaintiffs,
vs.

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CASE NO. 12CV2285-MMA (BLM)

ORDER DENYING EX PARTE
REQUEST FOR INJUNCTIVE
RELIEF

JP MORGAN BANK, NA; CHASE HOME
FINANCE LLC; WASHINGTON MUTUAL
BANK, FA; CALIFORNIA
RECONVEYANCE COMPANY; and DOES
1-20 inclusive,

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[Doc. No. 2]

Defendants.

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This matter comes before the Court on Plaintiffs’ “Ex Parte Notice, Application for

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Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction.” [Doc. No. 2.]

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The Court has considered the pleadings filed in support of the application and the remainder of the

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file and DENIES the application for the reasons stated herein.

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I.

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On September 19, 2012, Plaintiffs John Newsom and Anna Newsom, proceeding pro se,

Procedural and Factual History

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filed the instant action alleging violations by Defendants JP Morgan Bank, N.A., Chase Home

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Finance, LLC, Washington Mutual Bank, FA, and California Reconveyance Company (collectively

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“Defendants”) of various state laws and federal regulations. [Doc. No. 1.] At the same time,

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Plaintiffs filed an application for a temporary restraining order (“TRO”), preventing the sale
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scheduled for September 24, 2012 of their home located at 13637 Browncroft Way, El Cajon, CA

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92021.1 [Doc. No. 2, p. 2.] In addition, Plaintiffs request the Court issue an order requiring

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Defendants to show cause why a preliminary injunction should not issue, preventing the sale of

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Plaintiffs’ home during the pendency of this action.

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II.

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Rule 65(b) of the Federal Rules of Civil Procedure provides that a court may issue a TRO

Discussion

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without notice to the adverse party where “specific facts in an affidavit or a verified complaint

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clearly show that immediate and irreparable injury, loss, or damage will result to the movant . . . .”

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FED. R. CIV. P. 65(b)(1)(A). The movant must also certify in writing any efforts made to give notice

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and the reasons why it should not be required. FED. R. CIV. P. 65(b)(1)(B). Although the restrictions

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imposed are stringent, these restrictions “reflect the fact that our entire jurisprudence runs counter to

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the notion of court action taken before reasonable notice and an opportunity to be heard has been

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granted both sides of a dispute.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck

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Drivers, 415 U.S. 423, 438–39 (1974). The Ninth Circuit has cautioned that there are very few

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circumstances justifying the issuance of an ex parte TRO. Reno Air Racing Assoc., Inc. v. McCord,

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452 F.3d 1126, 1131 (9th Cir. 2006). Such circumstances include “a very narrow band of cases in

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which ex parte orders are proper because notice to the defendant would render fruitless the further

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prosecution of the action.” Id. (quoting Amer. Can Co. v. Mansukhani, 742 F.2d 314, 322 (7th

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Cir.1984)).

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As a preliminary matter, it appears Plaintiffs have not satisfied the notice requirements set

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forth in Rule 65(b). Plaintiffs attach a declaration to their request for a TRO which alleges that

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copies of Plaintiffs’ complaint and application for a TRO were emailed to Defendants. [Doc. No. 2,

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p. 9-10.] However, the declaration is unsigned and provides conflicting names of the declarant

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(“Tom Clark” and “Anna Kovalenko”). [Id.] In light of this, the Court cannot accept the

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declaration. Further, Plaintiffs do not provide any reasons why notice should not be required.

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Additionally, even if the Court were satisfied that Plaintiffs had given notice to Defendants,

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The relevant factual history, as alleged by Plaintiffs, is contained in the Application for the
TRO under the heading “Summary of Facts.” [Doc. No. 2, pp. 3-5]
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ultimately Plaintiffs have failed to meet their burden for preliminary relief. The standard for

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obtaining a temporary restraining order is generally the same as the standard for obtaining a

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preliminary injunction. The party moving for a preliminary injunction must show “that he is likely

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to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

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relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

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Winter v. Natural Resources Def. Council, Inc., 129 S. Ct. 365, 374, 172 L. Ed. 2d 249 (2008).

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While the Court is aware that losing one’s primary residence constitutes irreparable harm,

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see Hernandez v. Downey S&L Ass’n, 2009 U.S. Dist. LEXIS 21495, at *26 (S.D. Cal. 2009), such

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irreparable harm cannot completely displace a showing of a likelihood of success on the merits.

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And, considering the facts alleged in the complaint, it appears unlikely Plaintiffs will succeed on the

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merits at trial.

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For instance, Plaintiffs claim they are entitled to “quiet title” to the property. However,

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under California law, a borrower may not assert quiet title against a mortgagee without first paying

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the outstanding debt on the property. See Miller v. Provost, 26 Cal. App. 4th 1703, 1707 (1994) (“a

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mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee”)

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(citation omitted). Plaintiffs have not alleged that they have paid the outstanding debt on the

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property, or can do so. Therefore, the Court finds that there is little likelihood of success on this

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claim.

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Plaintiffs’ other claims include alleged violations of the Truth in Lending Act (“TILA”), 15

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U.S.C. section 1601, et seq., the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C.

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section 2601, et seq., and the Home Ownership Equity Protection Act (“HOEPA”), 15 U.S.C.

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section 1639, et seq., but the statute of limitations appears to have run on these claims. And while

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the Court makes no findings with respect to the timeliness of the damages-related claims, it appears

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that some or all of the claims arising from the alleged disclosure deficiencies may be time barred as

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the purported violations would have occurred at the time the loan closed in August 2004.

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Also, it appears that Plaintiffs’ wrongful foreclosure claim will fail on the merits as they

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have not alleged that they tendered the full amount owed on the loan. See Pantoja v. Countrywide

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Home Loans, Inc., 640 F. Supp. 2d 1177, 1183-84 (N.D. Cal. 2009) (“Under California law, in an
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action to set aside a trustee’s sale, a plaintiff must demonstrate that he has made a valid and viable

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tender [offer] of payment of the indebtedness” (citations and quotation marks omitted).); see also

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Alcaraz v. Wachovia Mortgage FSB, 592 F. Supp. 2d 1296, 1304 (E.D. Cal. 2009) (“‘A valid and

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viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale

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under a deed of trust.’”) (citing Karlsen v. Am. Sav. & Loan Ass’n, 15 Cal. App. 3d 112, 92 Cal.

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Rptr. 851 (Ct. App. 1971)).

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Further, Plaintiffs’ negligence claim is unlikely to succeed because, “as a general rule, a

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financial institution owes no duty of care to a borrower when the institution’s involvement in the

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loan transaction does not exceed the scope of its conventional role as a mere lender of money.”

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Nymark v. Hart Federal Savings & Loan Assn., 231 Cal. App. 3d 1089, 1096 (1991).

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The Court will not individually address the remainder of Plaintiffs’ claims, but the Court has

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read and considered them and is not persuaded that Plaintiffs are likely to succeed on any of these

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claims.

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In sum, even if Plaintiffs had met the notice requirements, Plaintiffs have failed to show that

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they are likely to succeed on the merits of their claims, that the balance of equities tips in their favor,

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or that granting the motion is in the public’s interest. See Winter, 129 S. Ct. at 374. As such, the

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Court shall not issue a TRO, or any further injunctive relief at this time.

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Accordingly, the Court DENIES Plaintiffs’ ex parte application.

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IT IS SO ORDERED.

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DATED: September 20, 2012

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Hon. Michael M. Anello
United States District Judge

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