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Gladkihk v. National City Mortgage

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 22, 2010

LINA GLADKIHK, PLAINTIFF,
v.
NATIONAL CITY MORTGAGE; PNC MORTGAGE; GREEN TREE SERVICING, LLC; FANNIE MAE, 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 Lina Gladkihk ("Plaintiff") financed her home in December 2004. Presently before the Court is a Motion by Defendants Federal National Mortgage Association ("Fannie Mae") and Green Tree Servicing, LLC (collectively "Defendants") to Dismiss the claims alleged against them in Plaintiff's Complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

Concurrently, Plaintiff has filed a Motion for Preliminary Injunction against Defendant Green Tree Servicing, LLC pursuant to Federal Rule of Civil Procedure 65(a).*fn1

Plaintiff has failed to timely file an opposition to Defendants' Motion to Dismiss. Pursuant to Local Rule 230(c), opposition to a motion must be filed not less than fourteen (14) days prior to the date of the hearing. The date of the hearing on motion was set for June 10, 2010. Fourteen (14) days prior to the hearing was May 27, 2010. No opposition was filed as required.

In light of the fact that no opposition was filed by Plaintiff, Defendants' Motion to Dismiss (Docket No. 6) is GRANTED with leave to amend.

With Plaintiff's claims presently dismissed, Plaintiff has failed to demonstrate the requisite likelihood of success on the merits to warrant imposition of a preliminary injunction. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). Moreover, Plaintiff's Motion is contradictory in terms. Plaintiff requests that the Court enjoin foreclosure on her home, however, she indicates that the home was already sold on April 1, 2010, and that a Notice to Quit was issued April 6, 2010 (Mot. For Prelim Inj. 4; Compl. 8:4-8). The Court cannot, on these grounds, provide the equitable relief requested. Plaintiff's Motion for Preliminary Injunction (Docket No. 9) is DENIED.

Plaintiff may file an amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically. If no amended complaint is filed within said twenty (20)-day period, without further notice, Plaintiff's claims will be dismissed without leave to amend.

IT IS SO ORDERED.


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