Coleman v. American Home Mortgage Servicing, Inc. et al
Filing
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ORDER that 68 Ex Parte Motion for Temporary Restraining Order is GRANTED. The temporary restraining order shall be effective until a hearing ont he Motion for Preliminary Injunction 69 can be held. Signed by Judge Gloria M. Navarro on 12/6/12. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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Anthony Coleman,
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Plaintiff,
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vs.
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American Home Mortgage Servicing, Inc., et )
al.
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Defendants.
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Case No.: 2:11-cv-00178-GMN-VCF
ORDER
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This action arises out of the foreclosure proceedings initiated against the property of pro
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se Plaintiff Anthony Coleman. Before the Court is Plaintiff’s Ex Parte Motion for Temporary
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Restraining Order (ECF No. 68), Motion for Preliminary Injunction (ECF No. 69) and
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Supplemental Memorandum (ECF No. 70). The Motion for Preliminary Injunction is not yet
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ripe, Defendants have not yet filed an opposition, and the deadline to do so has not yet passed.
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I. BACKGROUND
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Plaintiff initiated this action on February 1, 2011, by filing a Complaint before this
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Court relating to the property he claimed to own and maintain his residence, located at 6136
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Benchmark Way, North Las Vegas, NV, 89031 (“the property”). (ECF No. 1.) After granting
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Defendants’ first Motion to Dismiss, the Court gave Plaintiff leave to amend his Complaint by
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January 3, 2012. (Order, Dec. 8, 2011, ECF No. 41.) At that time, the Court noted that “[t]he
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documents submitted by the parties demonstrate that the foreclosure may have been statutorily
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invalid,” and gave Plaintiff leave to amend his complaint to allege a statutory defect under
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N.R.S. § 107.080. (Id.)
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After Plaintiff filed several successive amended complaints, the Court construed
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Plaintiff’s filings as a request for extension of time to re-file his Amended Complaint pursuant
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to the Court’s December 8, 2011, Order, and permitted Plaintiff’s Third Amended Complaint
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(ECF No. 49) to stand as the operative Complaint before the Court. (Order, July 20, 2012, ECF
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No. 61.) Plaintiff’s causes of action, as amended, are: (1) Statutorily Defective Foreclosure
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Under N.R.S. § 170.080; and (2) Quiet Title.
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II. LEGAL STANDARD
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Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary
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restraining orders, and requires that a motion for temporary restraining order include “specific
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facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable
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injury, loss, or damage will result to the movant before the adverse party can be heard in
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opposition.” Fed. R. Civ. P. 65(b). Temporary restraining orders are governed by the same
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standard applicable to preliminary injunctions. See Cal. Indep. Sys. Operator Corp. v. Reliant
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Energy Servs., Inc., 181 F.Supp. 2d 1111, 1126 (E.D. Cal. 2001). A temporary restraining
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order “should be restricted to serving [its] underlying purpose of preserving the status quo and
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preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.”
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Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S.
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423, 439 (1974).
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An injunction may be issued if a plaintiff establishes: (1) likelihood of success on the
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merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) that the
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balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v.
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Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Injunctive relief [is] an extraordinary
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remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such
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relief.” Id. at 22. The Ninth Circuit has held that “‘serious questions going to the merits’ and a
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hardship balance that tips sharply toward the plaintiff can support issuance of an injunction,
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assuming the other two elements of the Winter test are also met.” Alliance for the Wild Rockies
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v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).
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III. DISCUSSION
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As discussed by the Court in its December 8, 2011, Order, the foreclosure on the
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property appears to be statutorily defective. Remedies for violation of the foreclosure statute
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include potential voiding of any sale conducted on the property. The judicially noticeable
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documents submitted to the Court by Defendants provide sufficient basis for the Court to find
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that there are serious questions going to the merits.
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Likewise, since eviction procedures have been initiated, the Court finds that there is a
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likelihood of irreparable harm in the absence of preliminary relief, and that the hardship
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balance here tips sharply toward the plaintiff. The Court finds that an injunction here is in the
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public interest.
Since Plaintiff is facing eviction, the Court finds that no bond or security is required at
this time.
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IV. CONCLUSION
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IT IS HEREBY ORDERED that Plaintiff’s Ex Parte Motion for Temporary
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Restraining Order (ECF No. 68) is GRANTED. The temporary restraining order shall be
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effective until a hearing on the Motion for Preliminary Injunction (ECF No. 69) can be held.
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DATED this 6th day of December, 2012.
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___________________________________
Gloria M. Navarro
United States District Judge
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