Nguyen v. Bank Of America, NA

Filing 3

MEMORANDUM ORDER AND OPINION denying 2 MOTION for Temporary Restraining Order MOTION for EX Parte Hearing (Signed by Judge George C Hanks, Jr) Parties notified. Copy to plaintiff via reg. mail.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
CHAU D HO-HUYNH TU NGUYEN,
Plaintiff,
VS.
BANK OF AMERICA, NA,
Defendant.

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June 22, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 3:17-CV-199

MEMORANDUM ORDER AND OPINION
Plaintiff has filed an “Emergency Motion for Temporary Restraining Order and
Request for Immediate Ex Parte Hearing,” Dkt. 1, 2. Plaintiff, who is pro se, seeks an ex
parte temporary restraining order (“TRO”) from this Court preventing the foreclosure
sale of Plaintiff’s home. While the Court is sympathetic to the distressing circumstances
detailed by Plaintiff, the request for an ex parte TRO is DENIED.
“To obtain a temporary restraining order or preliminary injunction, a plaintiff must
establish the following elements by a preponderance of the evidence: (1) there is a
substantial likelihood of success on the merits; (2) there is a substantial threat that
irreparable injury will result if the injunction is not granted; (3) the threatened injury
outweighs the threatened harm to the defendant; and (4) granting the preliminary
injunction will not disserve the public interest.” Khan v. Fort Bend Independent School
District, 561 F. Supp. 2d 760, 763 (S.D. Tex. 2008) (citing Karaha Bodas Co. v.
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir.
2003)). After reviewing the Motion, the Court finds that Plaintiff has failed to provide

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sufficient evidence to allow the requested injunctive relief at this time. Significantly,
Plaintiff pleads that the Bank itself, not Plaintiff, is the current “owner” of the home, and
that the foreclosure sale is scheduled for July 4, 2017 after being delayed for several
years. There is no discussion of any possible harm to the Defendant, or how the
threatened injury to Plaintiff outweighs that possible harm.
Further, there is no support for Plaintiff’s request that the TRO be issued ex parte,
without notice to the Defendant. The Federal Rules of Civil Procedure plainly state that a
court may issue a temporary restraining order without notice to the other party or its
attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition; and (B) the movant's attorney certifies in
writing any efforts made to give notice and the reasons why it should not be required.
FED. R. CIV. P. 65(b)(1). Further, the Court’s order must “describe the injury and state
why it is irreparable [and] state why the order was issued without notice[.]” FED. R. CIV.
P. 65(b)(2).
“A TRO is an equitable remedy, and one who seeks equity must do equity, which
in this instance includes fulfilling one's obligation to communicate with adverse parties.”
Camber Energy, Inc. v. Discover Growth Fund, & Fifth Third Securities, Inc., CV H-171436, 2017 WL 1969682, at *1 (S.D. Tex. May 11, 2017) (Lake, J.) (considering “the
timing of the motion, the relationship between the parties, the threat that Camber
describes, and whether any alleged injury is irreparable,” and noting, “Camber filed a
fifty-page Petition supported by an affidavit signed on May 5, 2017. These filings
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required time to prepare, yet there is no evidence that Camber attempted to notify
Defendants in an attempt to avert the alleged disaster.”); see also Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 172 L.Ed. 2d 249 (2008) (noting,
“[i]njunctive relief [is] an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.”).
CONCLUSION
Accordingly, Plaintiff’s motion for an ex parte TRO and emergency hearing is
DENIED.
SIGNED at Galveston, Texas, this 22nd day of June, 2017.
___________________________________
George C. Hanks Jr.
United States District Judge

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