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Brian Anthony Armendariz andalicia v. Jp Morgan Chase Bank

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 9, 2011

BRIAN ANTHONY ARMENDARIZ ANDALICIA ARMENDARIZ,
PLAINTIFF,
v.
JP MORGAN CHASE BANK, NA, DEUTSCHE BANK NATIONAL TRUST COMPANY, CALIFORNIA RECONVEYANCE COMPANY, DEFENDANTS.

The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER DENYING PLAINTIFFS' PETITION FOR TRO (Doc. No. 10.)

Presently before the Court is Plaintiffs' petition for temporary restraining order. (Doc. No. 10 (Pet. for TRO).) The underlying complaint concerns a loan secured by Plaintiffs' property. (Doc. No. 1 (Compl.), Ex. 3.) A foreclosure sale on the property is set for February 7, 2011, at 10:00 a.m. (Pet. for TRO, Affidavit of Verification at 4.) Plaintiffs request the Court enjoin Defendants from foreclosing. (Pet. for TRO at 2.)

Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977). "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." Winter v. Natural Res. Def. Council, Inc. (NRDC), - U.S. -, 129 S. Ct. 365, 374 (2008) (citing Munaf v. Geren, 553 U.S. 674, 128 S. Ct. 2207, 2218--19 (2008)).

With respect to the showing a plaintiff must make regarding his chances of success on the merits, the Ninth Circuit applies a sliding scale approach. "Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Alliance for the Wild Rockies v. Cottrell, 2011 WL 208360, *4 (9th Cir. 2011). So long as the other two elements are met, "a preliminary injunction is appropriate when plaintiff demonstrates that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor." Id. at *7 (internal formatting omitted) (quoting The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)).

The Court discusses only the "likelihood of success on the merits" prong as it is dispositive of Plaintiffs' petition. Plaintiffs proceed pro se, and the Court has construed the allegations in the Complaint and petition for TRO liberally. Hebbe v. Pliler, 627 F.3d 338, 348 (9th Cir. 2010). Even then, Plaintiffs' complaint contains an uncountable number of causes of action. At best, the Court parses out thirteen causes of action: 1) violation of the Real Estate Settlement Procedures Act (RESPA), 2) violation of the Truth in Lending Act, 15 U.S.C. § 1601 et seq, 3) claim to quiet title, 4) breach of implied covenant of good faith and fair dealing, 5) breach of fiduciary duty by broker, 6) breach of fiduciary duty by appraiser, 7) breach of fiduciary duty by lender, 8) breach of fiduciary duty by closing agent, 9) negligence/negligence per se, 10) common law fraud, 11) fraud by non-disclosure, 12) intentional infliction of emotional distress, and 13) unfair business practices under California Business and Professions Code § 17200. (See generally Compl.)

The Court finds it unnecessary to discuss the causes of action individually. As a whole, Plaintiffs' complaint contains only conclusory allegations of wrongdoing. And this flaw is endemic to every cause of action. For instance, Plaintiffs' RESPA cause of action alleges an 'a' through 'r' list of RESPA violations. They include:

a) Good Faith Estimate not within the limits b) No HUD-1 Booklet c) Truth in Lending Statement not timely presented . . . i) Financial Privacy Act Disclosure j) No Equal Credit Reporting Act Disclosure k) No notice of right to receive appraisal report. . . n) No notice of credit score o) No RESPA servicing disclosure letter . . . r) No notice of right to rescind.

The claim contains little else. Plaintiffs fail to explain what statutory provisions were violated or which violations could be attributed to the Defendants. With the allegations as vacuous as they are, the Court cannot find that Plaintiffs have a likelihood of success on the merits. Indeed, Plaintiffs are a far cry from even raising a serious question going to the merits.

This failure to provide anything other than boiler plate, conclusory statements of wrongdoing is replicated in the other twelve causes of action. At least one other court has been faced with the same complaint containing the same allegations and has come to the same conclusion. See Avila v. Countrywide Home Loans, 2010 WL 5071714 (N.D. Cal. December 7, 2010). With the facts alleged in this complaint, the Court cannot find that Plaintiffs have a likelihood of success on the merits on any causes of action.

Having failed to establish a necessary prong to obtain a temporary restraining order, the Court DENIES Plaintiffs' petition.

IT IS SO ORDERED.

20110209

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