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Hornsby v. World Savings Bank

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 4, 2010

ANNETTE HORNSBY, PLAINTIFF,
v.
WORLD SAVINGS BANK, FSB; WACHOVIA BANK; FEDERAL SAVINGS BANK, FSB; AND DOES 1 THOUGH 10, DEFENDANTS.

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

MEMORANDUM AND ORDER

This action arises out of a mortgage loan transaction in which Plaintiff Annette Hornsby executed two Promissory Notes in connection with properties owned in Vallejo, California. Plaintiff's Complaint requests, inter alia, that the Court issue emergency temporary injunctive relief, pursuant to Federal Rule of Civil Procedure 65(b), enjoining Defendants from conducting a foreclosure sale.

However, Plaintiff's request is procedurally and substantively deficient. Of greatest import, Plaintiff has failed to identify the exact property being foreclosed upon. The Complaint addresses two loans for two separate properties, 2319 Bennington Drive Vallejo, CA 94591 and 324 Moonraker Dr, Vallejo, CA 94590 (Compl. p. 3). But in a requesting emergency relief, Plaintiff refers to "the Property," "loss of their [sic] home," and that "Plaintiffs [sic] reside in the Property." (Compl. p. 11.) Neither of the previously mentioned addresses are specifically identified as being "the Property" subject to foreclosure.

Since Plaintiff did not identify the Property in foreclosure, she has failed to meet the standard necessary for the relief requested. Issuance of a temporary restraining order ("TRO"), as a form of preliminary injunctive relief, is an extraordinary remedy, and Plaintiffs have the burden of proving the propriety of such a remedy by clear and convincing evidence. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442 (1974). Certain prerequisites must be satisfied prior to issuance of a temporary restraining order. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). Here, the most basic of prerequisites has not been met.

Furthermore, Local Rule 231(c) requires that a party seeking a TRO file: 1) a complaint; 2) a Motion for Temporary Restraining Order; 3) a brief on all relevant legal issues presented by the motion; 4) an affidavit in support of the existence of an irreparable injury; 5) an affidavit detailing the notice or efforts to effect notice to the affected parties or showing of good cause why notice should not be given; 6) a proposed temporary restraining order with a provision for bond; 7) a proposed order with blanks for fixing the time and date for hearing; and 8) a proposed order that shall further notify the affected party of the right to apply to the Court for modification.

Plaintiff has provided none of these documents save for the complaint. Plaintiff has also failed to provide a completed TRO checklist.

Given its many shortcomings, Plaintiff's request for emergency temporary injunctive relief (Docket No. 1) is DENIED, nunc pro tunc, as of the date it was submitted on May 26, 2010.

IT IS SO ORDERED.

20100604

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