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Marty v. Wells Fargo Bank

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 12, 2010

JOSEPH EDWARD MARTY, PLAINTIFF,
v.
WELLS FARGO BANK, LOAN STAR SERVICES, DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING PLAINTIFF'S SECOND VERIFIED AND UNNOTICED EX PARTE MOTION FOR A TEMPORARY TRUSTEE RESTRAINING ORDER*fn1

On March 10, 2010, Plaintiff, proceeding in propria persona, filed a second verified and unnoticed ex parte motion for a temporary restraining order ("TRO motion"), requesting that the Court to enjoin the "unlawful foreclosure sale of the property owned by Plaintiff at 3216 Woedee Dr. El Dorado Hills, CA 95762." This is the second TRO motion filed. Plaintiff's first TRO motion was filed on March 9, 2010. Plaintiff's first TRO motion was denied in an order filed March 9, 2010, because Plaintiff did not show he was likely to succeed on the merits of his claims, or show that he prevailed on the other injunction factors. Plaintiff stated in his first TRO that the foreclosure sale of his property was scheduled to occur on March 9, 2010, at an unstated time. Plaintiff states in his second TRO that the foreclosure sale previously scheduled for March 9, 2010, was rescheduled to March 16, 2010. (Mot. 1:15-19.)

I. LEGAL STANDARD

"Temporary restraining orders are governed by the same standard applicable to preliminary injunctions." Pimentel v. Deutsche Bank Nat. Trust Co., No. 09-CV-2264 JLS (NLS), 2009 WL 3398789, at *1 (S.D.Cal. October 20, 2009)(referencing New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n. 2 (1977) (Rehnquist, J.)). Plaintiffs "seeking a preliminary injunction must establish that [they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest." Id. (citing Winter v. Natural Resources Defense Council, Inc., ---U.S.---, 129 S.Ct. 365, 374 (2008)).

II. ANALYSIS

Plaintiff has not shown that Defendants have been provided notice of the TRO he seeks. The order denying plaintiff's first TRO motion did not inform him of this notice defect.

A. Notice

Federal Rule of Civil Procedure 65(b)(1)(A), which applies to the ex parte TRO Plaintiff seeks, provides, in relevant part: the court may issue a [TRO] without written or oral notice to the adverse party or its attorney only if 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 . . . .

Moreover, Local Rule 231(a) provides: "[e]xcept in the most extraordinary of circumstances, no temporary restraining order shall be granted in the absence of actual notice to the affected party and/or counsel, by telephone or other means, or a sufficient showing of efforts made to provide notice." E.D. Cal. L.R. 231(a) (emphasis added). Plaintiff has not shown "extraordinary . . . circumstances" excusing his failure to provide Defendants with notice of the TRO he seeks.

Plaintiff avers that on March 4, 2010, he sent to Defendants a document titled "Notice of Fraud and Intent to Litigate" and a letter he sent to the FBI, which he appears to call his "FBI Complaint." However, those documents do not provide Defendants with notice that Plaintiff seeks a TRO in this court.

B. Likelihood of Success on the Merits on Plaintiff's New Claims

Nor has Plaintiff shown he is likely to prevail on the merits of his claims. Plaintiff adds the following averments in his second TRO motion: "[o]n March 4, 2010, [he] se[rved] a Notice of Fraud and Intent to Litigate and an FBI Complaint on Defendants for fraud and for violations of several Federal laws including trying to gain ti[tle] to [Plaintiff's] property by using unlawful foreclosure and counterfeit securities." (Mot. 3:17-23). Plaintiff also avers that "Defendants have further slandered Plaintiff['s] title to the property by filing an unlawful foreclosure." (Id. 3:22-24). Plaintiff's "Notice of Fraud and Intent to Litigate" document indicates Plaintiff is trying to allege the following new claims in his second TRO motion: that Defendants engaged in "COUNTERFEITING, COUNTERFEIT SECURITIES, WIRE FRAUD, BANK FRAUD AND CONSPIRACY TO DEFRAUD . . . ." Further in the document Plaintiff states he sent to the FBI, he states he believes that Defendants violated the Racketeer Influenced and Corrupt Organizations statute. Lastly, Plaintiff avers in his second TRO motion that "Defendants have further slandered Plaintiff['s] title to the property by filing an unlawful foreclosure." (Mot. 3:22-24)

Plaintiff's conclusory averments and allegations fail to state cognizable claims since the TRO motion is devoid of facts supporting the claims.

C. Irreparable Harm, Balance of Equities, Public Interest

While it is recognized that the loss of a home may constitute irreparable harm, here Plaintiff has not provided facts sufficient to show any of his claims have merit. Nor has he offered sufficient justification for conducting an unnoticed TRO proceeding. Further, Plaintiff has not shown facts supporting his premise that he will suffer irreparable harm if his home is sold. Lastly, Plaintiff's conclusory averments lack the quality of evidence sufficient to tip the equities in his favor or show that the public interest favors granting the TRO Plaintiff seeks.

III. CONCLUSION

For the stated reasons, Plaintiff's second TRO motion is DENIED.


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