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Soliven v. Bank of America

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 23, 2010

PLACIDO F. SOLIVEN, PLAINTIFF,
v.
BANK OF AMERICA, NA, DEFENDANT.

The opinion of the court was delivered by: John A. Houston United States District Judge

ORDER GRANTING PLAINTIFF'S PETITION FOR A TEMPORARY RESTRAINING ORDER AND SETTING BRIEFING SCHEDULE ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

On June 22, 2010, plaintiff, proceeding pro se, filed a complaint along with an ex parte petition for restraining order. According to the petition, Defendant, Bank of America, scheduled a foreclosure sale of plaintiff's residence on June 9, 2010. Although it is somewhat unclear from plaintiff's petition, it appears plaintiff is seeking a temporary restraining order enjoining defendant from proceeding with any future sale of his residence, located at 2921 E. 11th Street, National City, CA 91950, and from initiating an unlawful detainer action to evict him from that residence.

After a careful consideration of the pleadings presented, this Court finds that plaintiff has sufficiently met the requirements for issuance of a temporary restraining order pursuant to Rule 65 of the Federal Rules of Civil Procedure, in that plaintiff has sufficiently demonstrated irreparable harm and the balance of hardships tip sharply in plaintiff's favor. Immigrant Assistance Project of the L.A. County of Fed'n of Labor v. INS, 306 F.3d 842, 873 (9th Cir. 2002); Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. 1999); Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998). Therefore, this Court deems it appropriate to grant plaintiff's motion for a temporary restraining order enjoining any future foreclosure sale of the residence located at 2921 E. 11th Street, National City, CA 91950 and enjoining defendant from initiating unlawful detainer proceedings against plaintiff. Furthermore, pursuant to Rule 65(c), plaintiff shall post a security bond in the amount of $500 with this Court. In addition, this Court deems it appropriate to set a hearing date and briefing schedule for plaintiff's motion for preliminary injunction. During the preliminary injunction hearing, the Court may alter the amount of the security bond.

To the extent that plaintiff seeks to enjoin any previously conducted foreclosure, sale or transfer of his residence, that request is DENIED as MOOT. Moreover, if plaintiff seeks to enjoin an unlawful detainer action currently pending in state court, that request is DENIED under the Anti-Injunction Act and the abstention doctrine stated in Younger v. Harris, 401 U.S. 37 (1971).

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's ex parte petition for a temporary restraining order is GRANTED;

2. Defendant, its agents, servants, employees and representatives, and all persons acting in concert or participating with them, are hereby ENJOINED AND RESTRAINED from engaging in, committing or performing directly or indirectly, any of the following acts:

a. Foreclosing upon, selling or otherwise transferring the real property located at 2921 E. 11th Street, National City, CA 91950, County of San Diego, in the State of California, if such sale or transfer has not already occurred;

b. Instituting legal proceedings including but not limited to Unlawful Detainer proceedings to remove or otherwise interfere with plaintiff's possession of the real property located at 2921 E. 11th Street, National City, CA 91950, County of San Diego, in the State of California, if such proceedings have not already been initiated;

3. No later than 4:00 p.m. on June 25, 2010, plaintiff shall serve a copy of this Order upon the defendant;

4. Plaintiff shall post a security bond with the Clerk of Court in the amount of $500, pursuant to Rule 65(c) of the Federal Rules of Civil Procedure, no later than 4:00 p.m. on June 25, 2010; and

5. Plaintiff's motion for preliminary injunction is set for hearing before this Court on July 1, 2010 at 11:00 a.m. in Courtroom 11. Plaintiff shall file and serve his motion for preliminary injunction no later than June 28, 2010 at 12:00 noon. Defendant shall file and serve its opposition no later than June 30, 2010 at 12:00 noon.

IT IS FURTHER ORDERED that this temporary restraining order will expire on July 1, 2010 at 12:00 noon, absent further order of the Court.

20100623

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