Byrd v. American Home Mortgage Servicing, Inc. et al

Filing 7

ORDER Denying 5 Motion for Temporary Restraining Order. Signed by Judge Gloria M. Navarro on 11/8/13. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Mercedes Byrd,
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Plaintiff,
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vs.
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American Home Mortgage Servicing Inc.;
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Option One Mortgage Loan Trust; Wells Fargo )
Bank NA Trs c/o Ocwen Loan Servicing; Chris)
Anderson; Allen Banaszewski,
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Defendants.
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Case No.: 2:13-cv-01864-GMN-CWH
ORDER

This action arises out of the foreclosure proceedings conducted against the home of pro

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se Plaintiff Mercedes Byrd by Defendants American Home Mortgage Servicing, Inc.

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(“AHMSI”), Option One Mortgage Loan Trust (“Option One”), Wells Fargo Bank NA TRS

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(“Wells Fargo”), Ocwen Loan Servicing (“Ocwen Loan”), Chris Anderson, and Allan

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Banaszewski (collectively, “Defendants”). Pending before the Court is Plaintiff’s Motion for

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Temporary Restraining Order (ECF No. 5).

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I. BACKGROUND

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On October 11, 2013, Plaintiff filed her Complaint before this Court, alleging causes of

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action for: (1) Fraudulent Foreclosure; (2) Fraudulent Assignment; (3) Notary Fraud; (4) For

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Cancellation of Instrument – Specific Performance; (5) Quiet Title; (6) Preliminary Injunction

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& Permanent Injunction; and (7) Breach of Implied Covenant of Good Faith and Fair Dealing.

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(Compl., ECF No. 1.) Although Plaintiff was issued summons for Defendants AHMSI, Option

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One, and Wells Fargo the same day (ECF No. 2), as of November 8, 2013, Plaintiff has not

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filed proof of service for any Defendant, either for the Complaint (ECF No. 1) or for the instant

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Motion for Temporary Restraining Order (ECF No. 5).

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II. LEGAL STANDARD

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Preliminary injunctions and temporary restraining orders are governed by Rule 65 of the

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Federal Rules of Civil Procedure, which provides that a “court may issue a preliminary

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injunction only on notice to the adverse party.” Fed. R. Civ. P. 65(a)(1).

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A “court may issue a temporary restraining order without written or oral notice to the

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adverse party or its attorney only if: (A) 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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before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in

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writing any efforts made to give notice and the reasons why it should not be required.” Fed. R.

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Civ. P. 65(b)(1). A temporary restraining order “should be restricted to serving [its] underlying

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purpose of preserving the status quo and preventing irreparable harm just so long as is

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necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters

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Local No. 70, 415 U.S. 423, 439 (1974).

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“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

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

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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 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Injunctive relief 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.” Id. at 22. “[C]ourts must balance the competing claims of injury and

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must consider the effect on each party of the granting or withholding of the requested relief.”

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Id. at 24 (internal quotation marks omitted).

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The Ninth Circuit has held that “serious questions going to the merits and a hardship

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balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming

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the other two elements of the Winter test are also met.” Alliance for the Wild Rockies v.

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Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011) (internal quotation marks omitted).

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“In deciding a motion for a preliminary injunction, the district court ‘is not bound to

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decide doubtful and difficult questions of law or disputed questions of fact.’” Int’l Molders’ &

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Allied Workers’ Local Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir. 1986) (quoting

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Dymo Indus., Inc. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964)).

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III. DISCUSSION

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Plaintiff requests that the Court enjoin Defendants from enforcing the eviction order

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issued in state court that requires Plaintiff to evacuate the premises of her home by November

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22, 2013. (Mot. TRO, ECF No. 5.)

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Plaintiff does not appear likely to be able to satisfy the Winter test, or the Ninth Circuit’s

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Cottrell sliding scale test, particularly because Plaintiff has not shown a likelihood of success

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on the merits entitling her to possession of the property. In fact, the Court’s review of

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Plaintiff’s Complaint indicates a likely failure to satisfy the pleading requirements of Rule

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12(b)(6) of the Federal Rules of Civil Procedure. However, the Court need not reach these

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questions at this time because Plaintiff has failed to satisfy the requirements for the issuance of

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a temporary restraining order pursuant to Rule 65(b)(1).

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A “court may issue a temporary restraining order without written or oral notice to the

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adverse party or its attorney only if: (A) 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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before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in

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writing any efforts made to give notice and the reasons why it should not be required.” Fed. R.

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Civ. P. 65(b)(1).

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Having reviewed Plaintiff’s Complaint (ECF No. 1) and Motion for Temporary

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Restraining Order (ECF No. 5), the Court cannot find that Plaintiff has provided any basis for

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the Court to make the required Rule 65(b)(1)(A) findings justifying the issuance of a temporary

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restraining order without notice to Defendants. Although Plaintiff’s impending eviction on

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November 22, 2013, shows a form of harm, the Court cannot find that this harm is irreparable

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in contrast to the type of harm that would result if her property interest had not already been

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transferred. More important, however, is that Plaintiff has shown no likelihood of success on

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the merits that would result in a finding that Plaintiff owns the subject property. Accordingly,

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Plaintiff has not shown that an order enjoining her eviction is justified, and particularly not

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without notice to Defendants or any other party claiming title to the property.

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Accordingly, the Court must deny Plaintiff’s Motion for Temporary Restraining Order

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(ECF No. 5). The Court will determine the merits of Plaintiff’s Motion for Preliminary

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Injunction (ECF No. 6) upon a showing of notice to Defendants.1

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IV. CONCLUSION

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IT IS HEREBY ORDERED that the Motion for Temporary Restraining Order (ECF

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No. 5) is DENIED.

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DATED this 8th day of November, 2013.
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Gloria M. Navarro
United States District Judge

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The Court refers Plaintiff to the Pro Se Assistance Packet provided to the public by the United States District
Court for the District of Nevada, available at http://www.nvd.uscourts.gov.

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