Fernando v. MortgageIt, Inc. et al

Filing 6

ORDER denying Plaintiff's 2 Motion for TRO. Signed by Judge James C. Mahan on 8/24/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LYNN FERNANDO,

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2:11-CV-1352 JCM (GWF)

Plaintiff,
v.
MORTGAGEIT, et al.,

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Defendants.

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ORDER
Presently before the court is plaintiff Lynn Fernando’s emergency application for temporary
restraining order and motion for preliminary injunction. (Doc. #2).

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Plaintiff requests that this court enter a temporary restraining order to prevent a trustee’s sale

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scheduled for August 25, 2011. (Doc. #2). Plaintiff asserts she is not in breach as to the foreclosing

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defendants. (Doc. #2). Thus, plaintiff has made no action or failure to perform that “would have

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authorized these defendants to exercise the power of sale.” (Doc. #2). Specifically, plaintiff alleges

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that defendant Mortgage Electric Registration Systems, Inc (MERS) “did not have the ability to

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transfer interest in the loan” to Deutsche Bank National Trust Company. (Doc. #2). Therefore,

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defendants Deutsche Bank National Trust Company and MTDS “are strangers to the transaction”

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and have no authority to institute the trustee’s sale. (Doc. #2). Plaintiff also asserts that defendants

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did not attach a copy of the promissory note to the notice of trustee’s sale. (Doc. #2). Plaintiff argues

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that this is a violation of NRS 107.085(3)(b). (Doc. #2).

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James C. Mahan
U.S. District Judge

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According Federal Rule of Civil Procedure 65, a court may issue a temporary restraining

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order when the moving party provides specific facts showing that immediate and irreparable injury,

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loss, or damage will result before the adverse party’s opposition to a motion for preliminary

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injunction can be heard. The Supreme Court has stated that courts must consider the following

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factors in determining whether to issue a temporary restraining order and preliminary injunction: 1)

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a likelihood of success on the merits; 2) possibility of irreparable injury if preliminary relief is not

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granted; 3) balance of hardships; and 4) advancement of the public interest. Winter v. N.R.D.C., 555

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U.S. 7, 20 (2008).

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The court finds that plaintiff’s motion falls far short of the standard required by the Supreme

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Court in Winter. Plaintiff’s motion collects the holdings of several cases from other districts, but

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fails to marshal binding precedent that tends to establish a likelihood of success on the merits.

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Plaintiff neither analyzes the cases to which she cites nor does she compare the facts of the instant

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litigation to the facts in those cases. In effect, plaintiff is requesting this court to research the record

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to determine the controlling facts of her dispute with defendants and then apply those facts to the

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holdings of a handful of cases which she has cited. Because plaintiff’s application fails to establish

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how her facts align with the facts of the supporting case law that she cites, this court cannot conclude

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that she enjoys a likelihood of success on the merits. Plaintiff also fails to authenticate any of the

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documents submitted in support of her application for a temporary restraining order.

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Second, Nevada law allows the court to declare a trustee’s sale void. See NRS 107.080(5).

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Therefore, plaintiff has not provided specific facts that show “immediate and irreparable injury, loss,

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or damage will result to the movant before the adverse party can be heard in opposition.” Fed. R.

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Civ. Pro. 65.

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Lastly, the court notes that plaintiff has been aware of defendants’ efforts to conduct a

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trustee’s sale since at least July 19, 2010 but plaintiff waited less than a week before the actual sale

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date to institute the instant proceeding in federal court.

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Accordingly,
...

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James C. Mahan
U.S. District Judge

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for a
temporary restraining order (doc. #2) be, and the same hereby is, DENIED.
DATED August 24, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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