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Weahunt v. Mortgageit Inc.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 10, 2010

MARINA WEAHUNT, PLAINTIFF,
v.
MORTGAGEIT INC., DEFENDANT.

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 Marina Weahunt ("Plaintiff") refinanced property at 3004 Aberdeen Lane, El Dorado Hills, CA 95762. Presently before the Court is Plaintiff's ex parte application for a Temporary Restraining Order ("TRO") and Preliminary Injunction*fn1, pursuant to Federal Rule of Civil Procedure 65, to enjoin Defendant MortgageIt, Inc. ("Defendant") from executing a foreclosure sale of her home.

Pursuant to Local Rule 231(a) "[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." Moreover, Federal Rule of Civil Procedure 65(b) mandates that the Court may not issue a TRO without notice to the adverse party unless:

"a) specific facts in an affidavit or 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; and

b) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required."

Fed. R. Civ. P. 65(b)(emphasis added). Issuance of a Preliminary Injunction requires actual notice to the adverse party. Fed. R. Civ. P. 65(a).

Plaintiff has failed to indicate any efforts made to provide notice to Defendant. Rather, the TRO Checklist completed by Plaintiff (Docket No. 7) specifically acknowledges that there has been no actual notice nor efforts to provide notice to the Defendant and, at best, states that "[Plaintiff is] going to notify Defendant," at some unspecified point in the future. This is insufficient to meet the mandates of Local Rules and the Federal Rules of Civil Procedure. The Court cannot, on these grounds, provide Plaintiff the relief requested.

Additionally, Plaintiff's pleading fails to provide the date and time of the expected trustee's sale of her home. As a procedural matter, it is not possible for the Court to enjoin an event which, within the Court's knowledge, is not yet scheduled to occur. Plaintiff can not be said to have met her burden of showing immediate irreparable harm, when the immediacy of the harm not been definitively alleged.

Given Plaintiff's failure to provide any notice whatsoever to Defendant, or to provide the Court with the date and time of the foreclosure sale, Plaintiff's Application for Temporary Restraining Order is DENIED without prejudice. To the extent that Plaintiff intended her request for relief to also constitute a Motion for Preliminary Injunction, it is also DENIED without prejudice.

IT IS SO ORDERED.


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