Huang v. Federal Home Mortgage Corporation et al

Filing 24

ORDER Denying 4 Motion for Preliminary Injunction. Signed by Chief Judge Robert C. Jones on 09/06/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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YAN CHANG HUANG,

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Plaintiff,
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v.
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FEDERAL HOME MORTGAGE
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CORPORATION, et al.,
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Defendants.
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___________________________________ )

2:12-cv-01141-RCJ-VCF
ORDER

Currently before the Court is Plaintiff’s motion for preliminary injunction (#4). For the
following reasons, the Court denies the motion for preliminary injunction (#4).
BACKGROUND

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Plaintiff Yan Chang Huang executed a note secured by a deed of trust on real property

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located at 7378 Divine Ridge St., Las Vegas, Nevada 89139, which was recorded in Clark

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County on January 6, 2006. (Deed of Trust (#7) at 27, 29). The mortgage, dated January 2,

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2006, was for $318,250. (Id. at 27). The deed of trust named Provident Funding Associates,

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L.P. as lender, First American Title Company as trustee, and Mortgage Electronic Registration

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Systems, Inc. (“MERS”) as nominee for the lender and beneficiary.1 (Id.).

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Plaintiff later defaulted on the note secured by the deed of trust. (Notice of Default (#7)

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at 49). MERS transferred all beneficial interest in the deed of trust to Wells Fargo Bank, N.A.

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Despite the wording of the deed of trust, MERS is not a beneficiary to the deed of

trust. See Gomez v. Countrywide Bank, FSB, 2009 WL 3617650, at *2 (D. Nev. 2009).

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on December 16, 2009.2 (Assignment of Deed of Trust (#7) at 55). The same day, Wells

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Fargo substituted Trustee Corps as trustee of the deed of trust in place of First American

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Title.3 (Substitution of Trustee (#7) at 53). First American Title, as agent of Trustee Corps,

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then executed and recorded a notice of default and election to sell on December 17, 2009.

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(Notice of Default (#7) at 49-50).

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A certificate issued by the Nevada Foreclosure Mediation Program allowing the

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beneficiary to proceed with the foreclosure process was recorded in Clark County by First

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American Title on November 15, 2011. (Certificate (#7) at 58). Trustee Corps then recorded

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a notice of trustee’s sale that same day. (Notice of Trustee’s Sale (#7) at 60-61).

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Plaintiff filed a pro se complaint in this Court alleging various foreclosure-related causes

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of action on January 3, 2012 (Case No. 2:12-cv-00001-LDG-PAL) against Wells Fargo Home

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Loans Servicing, L.P.; MERSCORP, Inc.; and MERS. (Compl., Case No. 2:12-cv-00001-LDG-

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PAL (#1) at 1). The defendants filed a motion to dismiss for failure to state a claim and the

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Court granted this motion and dismissed the complaint with leave to amend on April 13, 2012.

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(Mot. to Dismiss, Case No. 2:12-cv-00001-LDG-PAL (#9); Order, Case No. 2:12-cv-00001-

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LDG-PAL (#26) at 5). Plaintiff then filed an amended complaint on April 25, 2012 against

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Wells Fargo & Company, California Reconveyance Company, and MERS. (Am. Compl., Case

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No. 2:12-cv-00001-LDG-PAL (#31)). The defendants again filed a motion to dismiss for failure

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to state a claim and the Court granted the motion on June 29, 2012, dismissing the amended

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complaint without leave to amend because Plaintiff failed to file a response to the motion to

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dismiss. (Mot. to Dismiss, Case No. 2:12-cv-00001-LDG-PAL (#34); Order, Case No. 2:12-cv-

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00001-LDG-PAL (#42) at 1-2).

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While the previous action was pending in this Court, the property was sold at a trustee’s

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The assignment of the deed of trust was recorded in Clark County on January 22,

2010. (Assignment of Deed of Trust (#7) at 55).
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The substitution of trustee was recorded in Clark County on January 21, 2010.

(Substitution of Trustee (#7) at 53).
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sale to Federal Home Loan Mortgage Corporation on May 30, 2012 for $151,000. (Trustee’s

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Deed Upon Sale (#7) at 63-64). A trustee’s deed upon sale was recorded in Clark County on

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June 6, 2012. (Id. at 63).

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Plaintiff then filed a second pro se complaint in this Court (Case No. 2:12-cv-01141-

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RCJ-VCF) on June 29, 2012—notably the same day the defendants’ motion to dismiss in the

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previous action was granted. (Compl. (#1)). In the present complaint Plaintiff is suing Federal

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Home Mortgage Corporation; Provident Funding Associates, L.P.; Wells Fargo Home Loans

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Servicing, L.P.; MERSCORP, Inc.; and MERS. (Id. at 1). The complaint asserts seven causes

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of action, including: (1) fraud; (2) failure to comply with RESPA rules; (3) fraudulent

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foreclosure; (4) failure to comply with the Fair Debt Collection Act; (5) failure to comply with

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the Truth in Lending Act; (6) fraudulent assignment; and (7) notary fraud. (Id. at 7-14).

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On June 29, 2012, Plaintiff filed a motion for preliminary injunction.

(Mot. for

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Preliminary Injunction (#4)). Plaintiff seeks in her motion a preliminary injunction prohibiting

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the transfer of the property and prohibiting the removal of Plaintiff from the property. (Id. at

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3). Plaintiff failed to appear at the hearing held on August 6, 2012.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 65(a) allows a court to issue a preliminary injunction on

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notice to an adverse party. “An injunction is a matter of equitable discretion” and is “an

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extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is

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entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 32 (2008).

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To obtain a preliminary injunction, a plaintiff must demonstrate (1) that he is likely to succeed

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on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief,

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(3) that the balance of equities tips in his favor, and (4) that an injunction is in the public

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interest. Id. at 20; Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010). As to the

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second element, the plaintiff must show that irreparable harm is likely, not just possible.

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Winter, 555 U.S. at 22; see also Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668,

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674 (9th Cir. 1988) (“[A] plaintiff must demonstrate immediate threatened injury as a

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prerequisite to preliminary injunctive relief.”)
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DISCUSSION

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Plaintiff seeks a preliminary injunction prohibiting the transfer of the property and her

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removal from the property. Plaintiff is not entitled to injunctive relief however because she has

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failed to sufficiently demonstrate that she is at risk of imminent irreparable harm.

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First, the record clearly indicates that the property has already been sold at a trustee’s

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sale. (Trustee’s Deed Upon Sale (#7) at 63-64). Plaintiff is therefore not likely to suffer

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irreparable harm absent injunctive relief prohibiting the transfer of the property as the transfer

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has already been completed.

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Plaintiff has also failed to demonstrate that she is likely to suffer imminent irreparable

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harm absent a preliminary injunction prohibiting her removal from the property because she

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has not shown that any eviction proceedings are currently pending against her. Even if such

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eviction proceedings have been initiated, Plaintiff has failed to demonstrate or even allege that

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she will be irreparably harmed if forced to vacate the property during the pendency of these

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proceedings.
CONCLUSION

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For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for preliminary
injunction (#4) is DENIED.

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DATED: This _____ day September, 2012.
This 6th day of of August, 2012.

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_________________________________
United States District Judge

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