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Constance Solano and Solano - 3161 Big Bear, L.L.C. v. America's Servicing Co.

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


September 10, 2010

CONSTANCE SOLANO AND SOLANO - 3161 BIG BEAR, L.L.C., PLAINTIFF,
v.
AMERICA'S SERVICING COMPANY, A DIVISION OF WELLS FARGO, NA; WELLS FARGO, NA; MORTGAGEIT, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; NDEX WEST, L.L.C.; FINANCIAL TITLE COMPANY; U.S. BANK NA; BANC OF AMERICA FUNDING 2007-6 TRUST; MORTGAGE AND INVESTORS INVESTMENT CONSULTANTS, INC.; AND DOES 1-10,000, INCLUSIVE, DEFENDANTS.

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

ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER

On Friday, September 10, 2010, Plaintiff Constance Solano initiated an action in federal court and moved for a temporary restraining order ("TRO"), seeking to prevent the sale of her home at a trustee's sale scheduled for Monday, September 13, 2010. Plaintiff's TRO application, however, is woefully insufficient. Plaintiff's application fails to address the factors that are to be considered in deciding a request for emergency injunctive relief and asserts a conclusory manner the likelihood of success on the merit factor. See E.D. Cal. R. 231(c)(3) (requiring that a party moving for a TRO file "a brief on all relevant legal issues"); see also Am. Trucking Ass'n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (stating that "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest"); Bouyer v. IndyMac Fed. Bank, No. C-08-05582 EDL, 2009 WL 1765668, at *1 (N.D. Cal. June 18, 2009) (stating that "[r]equests for temporary restraining orders are governed by the same general standards that govern the issuance of a preliminary injunction"). Further, it is unclear which of Plaintiff's claims, if any, form the basis of her request for injunctive relief. In addition, Plaintiff has not demonstrated that she has provided "actual notice" to the affected parties as required by the Eastern District's Local Rule. See E.D. Cal. R. 231(a) (prescribing that "[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"). Lastly, Plaintiff has not explained why she waited until the eve of the foreclosure sale to seek relief. Since Plaintiff has "unduly delayed in seeking . . . relief," "th[is] delay constitutes laches" and provides an independent basis for denying Plaintiff's motion.

E.D. Cal. 231(b).

For the above stated reasons, Plaintiff's ex parte motion for a TRO is DENIED.

20100910

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