Billman Property, LLC v. Bank of America NA., Inc. et al

Filing 13

ORDER denying 8 Motion for Temporary Restraining Order and denying 9 Motion for Preliminary Injunction. Signed by Judge Miranda M. Du on 2/11/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BILLMAN PROPERTY, LLC,

Case No. 2:15-cv-00088-MMD-PAL
Plaintiff,

v.
BANK OF AMERICA, N.A., INC., et al.,

ORDER
(Def.’s Motion for Temporary Restraining
Order ―– dkt. no. 8)

Defendants.

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Before the Court is Defendant Bank of America, N.A.’s Motion for a Temporary

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Restraining Order and Preliminary Injunction (“Motion”) (dkt. nos. 8 & 9). Defendant

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asserts that Plaintiff has removed valuable fixtures from real property located at 3450

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Billman Avenue, Las Vegas, Nevada 89121 (the “Property”). Defendant seeks to prohibit

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Plaintiff from removing more fixtures from the Property, and from further harming the

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Property or decreasing its value.

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Defendant purchased the Property following a foreclosure in July 2014. (Dkt. no. 8

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at 2.) The foreclosure resulted from a default by non-party Steve Cook on a promissory

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note and deed of trust that Cook had executed to refinance a loan on the Property. (Id.)

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In June 2010, Cook recorded a quitclaim deed that transferred his interest in the

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Property to Plaintiff. (Id.) Several weeks after the July 2014 foreclosure, Plaintiff brought

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suit against Defendant; the parties agreed to the terms of a settlement agreement for

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that action in October 2014, but only Defendant executed the agreement. (Id. at 2-3; dkt.

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no. 6-6 ¶¶ 3-9.) As of January 2015, Plaintiff had not executed the settlement

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agreement, which would have required Plaintiff to vacate the property by January 15,

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2015. (Dkt. no. 8 at 3; dkt. no. 1 at 14.) Defendant inspected the Property on January 30,

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2015, and discovered that Plaintiff still occupied the Property, and that Plaintiff had

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allegedly removed statues and fountains from the Property. Defendant returned to the

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Property on February 3, 2015, to document where fixtures had been removed.

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Plaintiff filed this action on January 16, 2015, alleging nine claims for relief,

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including breach of the duty of good faith and fair dealing, quiet title, breach of fiduciary

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duty, wrongful foreclosure, suitability, negligence, liability per se, unfair lending practices,

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and intentional or negligent infliction of emotional distress. (Dkt. no. 1 at 3-11.)

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Defendant filed its Motion several weeks later, arguing that court action is necessary to

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prevent further deterioration of the Property.

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The Court may issue a temporary restraining order (“TRO”) pursuant to Federal

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Rule of Civil Procedure 65. The standard for issuing a TRO is “substantially identical” to

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the standard for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D.

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Brush & Co., 240 F. 3d 832, 839 n.7 (9th Cir. 2001). Thus, a party seeking a TRO must

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show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the

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absence of preliminary relief; (3) that the balance of equities tips in the moving party's

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favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def.

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Council, Inc., 555 U.S. 7, 20 (2008). Alternatively, an injunction may issue under the

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“sliding scale” approach if there are serious questions going to the merits and the

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balance of hardships tips sharply in the moving party’s favor, so long as that party still

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shows a likelihood of irreparable injury and that an injunction is in the public interest.

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Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).

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“Serious questions are those which cannot be resolved one way or the other at the

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hearing on the injunction.” Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 926–27 (9th

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Cir. 2003) (quoting Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.

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1988)) (internal quotation marks omitted). They “need not promise a certainty of
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success, nor even present a probability of success, but must involve a ‘fair chance of

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success on the merits.’” Marcos, F.2d at 1362 (citation and internal quotation marks

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omitted).

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Defendant contends that it is likely to succeed on the merits in dismissing

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Plaintiff’s Complaint. In its concurrently filed Motion to Dismiss, Defendant argues that

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Plaintiff’s claims must be dismissed because Plaintiff, a limited liability company, cannot

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proceed pro se, because Plaintiff lacks standing to assert certain claims, and because

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Plaintiff fails to state a claim upon which relief may be granted. (Dkt. no. 10 at 4-16.) But

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Defendant does not explain how dismissal of Plaintiff’s Complaint would entitle it to the

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“extraordinary remedy” of a TRO. Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th

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Cir. 2010) (citation and internal quotation marks omitted). Although dismissal would

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terminate Plaintiff’s claims, it would not entitle Defendant to any injunctive relief because

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Defendant has not asserted any claims of its own.

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Accordingly, it is ordered that Defendant’s Motion for Temporary Restraining
Order and Preliminary Injunction (dkt. nos. 8 & 9) is denied.
DATED THIS 11th day of February 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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