Gaines et al v. Flagstar Bank, FSB

Filing 14

ORDER Denying 1 - Exhibit A Temporary Restraining Order. Signed by Judge James C. Mahan on 1/23/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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FREDDIE GAINES, et al.,

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2:12-CV-2154 JCM (GWF)

Plaintiff(s),

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v.
FLAGSTAR BANK, FSB, et al.,

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Defendant(s).

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ORDER

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Presently before the court is the matter of Gaines et al v. Flagstar Bank, FSB, case number

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2:12-cv-0154-JCM-GWF. This is a mortgage related case that was originally filed in state court.

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The defendant removed the action to this court. When the action was removed from state court,

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there was a pending application for a temporary restraining order. Both the application for temporary

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restraining order and the defendant’s response in opposition are imbedded within an exhibit to the

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petition for removal. (Doc. # 1, Ex. A). The state court did not rule on the temporary restraining

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order before the action was removed to this court. The application and response are ripe for this

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court’s review.

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I.

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Plaintiffs sought financing for a premises located at 2141 Weber Way, Pahrump, Nevada,

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and the defendant bank loaned plaintiffs the money. (Doc. # 1, Ex. A, Compl at ¶¶ 7-8). Plaintiffs

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admit that they “fell behind on their mortgage” payments. (Id. at ¶ 9). Both parties then participated

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in the Nevada Foreclosure Mediation Program. (Id. at ¶ 10). Plaintiffs further admit that “[t]he

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James C. Mahan
U.S. District Judge

Background

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results [of the mediation] were not favorable to Plaintiffs.” (Id. at ¶ 11). By unfavorable, the

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plaintiffs really mean that the mediation resulted in a certificate allowing defendant to foreclose on

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the premises. (See Doc. # 1, Ex. A at p. 84).

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Plaintiffs then filed a tardy “petition for judicial review” of the mediation proceedings in state

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court, which the court dismissed. (See doc. # 1, Ex. A at p. 110-12). Defendant then foreclosed on

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the property.

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II.

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According to 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. Fed. R. Civ. P.65. “The purpose of a temporary restraining order is to

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preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial

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nature is designed merely to prevent irreparable loss of rights prior to judgment.” Miller v. Rufion,

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No. 08-1233, 2009 WL 348176, at *1 (E.D. Cal. Feb. 11, 2009) (citing Sierra On-Line, Inc. v.

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Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). “Thus, in seeking a temporary

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restraining order, the movant must demonstrate that the denial of relief will expose him to some

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significant risk of irreparable injury.” Id. (quoting Associated Gen. Contractors of California v.

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Coalition of Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991).

Legal Standard

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“Issuance of a temporary restraining order, as a form of preliminary injunctive relief, is an

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extraordinary remedy, and plaintiffs have the burden of proving the propriety of such a remedy by

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clear and convincing evidence.” De La Salle v. America’s Wholesale Lender, no. 2:09-cv-02701,

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2010 WL 1507317, at *1 (E.D. Cal. April 14, 2010); Winter v. N.R.D.C., 555 U.S. 7, 24 (2008) (“A

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preliminary injunction is an extraordinary remedy never awarded as a right.”). The Supreme Court

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has stated that a plaintiff must establish each of the following to secure an injunction: (1) a

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likelihood of success on the merits; (2) likelihood 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, 555 U.S. at 20-

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24 (2008). Plaintiff must “make a showing on all four prongs.” Alliance for the Wild Rockies v.

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James C. Mahan
U.S. District Judge

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Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

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III.

Discussion

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The court finds it appropriate to deny the temporary restraining order. Plaintiffs cannot

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establish a single Winter element. First, the foreclosure has already occurred so there is no imminent

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harm. Second, plaintiffs cannot establish a high enough likelihood of success on the merits.

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Plaintiffs admit defaulting on their loans and admit the mediation program offered a certificate to

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proceed forward with the foreclosure.

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Finally, the court notes that the complaint also seeks a permanent injunction. The court will

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resolve this issue when it resolves defendant’s motion to dismiss (doc. # 6). That motion is not yet

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ripe, so the court will wait until it becomes ripe to address the permanent injunction.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, DECREED that plaintiffs’ application for a

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temporary restraining order (See doc. # 1, Ex. A) be, and the same hereby, is DENIED.
DATED January 23, 2013.

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

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