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Munoz v. Lasalle Bank

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 17, 2009

OMAIRA MUNOZ, PLAINTIFF,
v.
LASALLE BANK, N.A.; ARGENT SECURITIES INC, AMERIQUEST MORTGAGE COMPANY; DEUTSCH BANK NATIONAL TRUST COMPANY; ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2003-W5; AND DOES 1 THROUGH 00, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

This matter is before the court on plaintiff Omaira Munoz's ("Munoz") application for a Temporary Restraining Order ("TRO"), seeking to prohibit defendants from transferring any interest in the property at issue or otherwise disposing of the property at issue in the ordinary course of business. (Application for TRO, filed Feb. 17, 2009, at 1). In support of her application for a TRO, plaintiff submits defendant LaSalle Bank, N.A.'s application for Writ of Possession, the Sheriff's Notice to Vacate, and her Complaint.

Plaintiff alleges in her complaint that she purchased the property located at 3861 Kelley Mist Ln, Tracy, CA 95377, on or about January 2006. (Compl., filed Feb. 17, 2008, ¶ 11.) When she purchased the property, plaintiff took out a loan in the amount of $634,950 from defendants; she subsequently defaulted on the loan. (Id.)

On or around September 2008, LaSalle Bank, N.A., purchased the property at a Trustee's Sale. (Id. ¶ 12.) On December 8, 2008, the San Joaquin County Superior Court granted LaSalle Bank, N.A.'s motion for summary judgment, holding that "title to the Property has been duly perfected in the name of [LaSalle Bank, N.A.], by virtue of a Trustee's Deed Upon Sale, recorded in the Official Records for the County of San Joaquin."*fn1 (Order at 1-2.) The court also noted that Munoz was served with a Notice to Quit the property. As such, it ordered that LaSalle Bank, N.A. recover from Munoz the restitution and possession of the property, and stated that a "Writ of Possession for the Property shall be issued forthwith." (Id. at 2.) That same day, the San Joaquin Superior Court issued a Judgment, ordering the clerk to issue a Writ of Possession "directing the sheriff to take all legal steps necessary to remove" Munoz from the premises.

The standard for issuing a temporary restraining order is the same as the standard for issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., Inc., 240 F.3d 832, 839-40 & n.7 (9th Cir. 2001). To qualify for a restraining order, the moving party must show (1) a probability of success on the merits, and (2) the likelihood of irreparable injury should the restraining order not issue. See id. These factors represent two points on a sliding scale, such that "the greater the relative hardship to the moving party, the less probability of success must be shown." Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. 1999) (citation omitted).

Based upon the record before it, the court cannot find that plaintiff has a right to possess the property at issue in this case, and thus to the relief sought by the temporary restraining order. Rather, the San Joaquin Superior Court directed the sheriff to take the action plaintiff seeks to prevent by this restraining order. Furthermore, plaintiff has failed to present any evidence to support a likelihood of success on the merits of her claims.

As such, plaintiff Munoz's application for a Temporary Restraining Order is DENIED.

IT IS SO ORDERED.


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