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Jim B. Kimball v. Bac Home Loans Servicing


February 9, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


United States District Court For the Northern District of California

On December 14, 2010, Plaintiff Jim B. Kimball, proceeding with counsel, filed a Complaint seeking the prevention of foreclosure on property located at 1720 Grace Avenue, San 18 Jose, California. See Dkt. #1. Named Defendants are BAC Home Loans Servicing, LP and 19 Mortgage Electronic Registration Systems ("MERS"). The Complaint includes four causes of 20 action: (1) estoppel/declaratory judgment; (2) declaratory judgment; (3) quiet title; and (4) refund, 21 fees, and costs. On February 4, 2011, Plaintiff filed an ex parte application for a temporary 22 restraining order ("TRO"), seeking to enjoin Defendants from proceeding with a foreclosure sale of 23 the Property scheduled for February 10, 2011. See Dkt. #3. There is no record of Plaintiff serving 24 upon Defendants either the December 14, 2010 Complaint or the February 4, 2011 ex parte 25 application for a TRO. Counsel for Defendants has not appeared. The case was reassigned to this Court on February 7, 2011. For the following reasons, Plaintiff's ex parte application for a TRO is 27 DENIED.

satisfy both the general standard for temporary restraining orders and the requirements for ex parte 4 orders set forth in Federal Rule of Civil Procedure 65(b). The standard for issuing a TRO is 5 identical to the standard for issuing a preliminary injunction. Brown Jordan Int'l, Inc. v. Mind's Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2002); Lockheed Missile & Space Co.,


Because Plaintiff seeks issuance of a TRO without notice to the Defendant, Plaintiff must Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). A plaintiff seeking a 8 preliminary injunction must make a four-fold showing: (1) that he is likely to succeed on the 9 merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that 10 the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008); Amer. Trucking Assocs., Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). In lieu of establishing likelihood of success on 13 the merits, a plaintiff may secure preliminary injunctive relief by showing "that serious questions 14 going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor." 15

United States District Court For the Northern District of California

See Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1052 (9th Cir. 2010)Id. A plaintiff 16 must still meet the other Winter factors. Id.

restraining order without notice only if: "A) specific facts in an affidavit or a verified complaint 19 clearly show that immediate and irreparable injury, loss, or damage will result to the movant before 20 the adverse party can be heard in opposition; and B) the movant's attorney certifies in writing any 21 efforts made to give notice and the reasons why it should not be required." Also related to notice, 22 the Court's Local Rule 65-1(b) states that, unless relieved by the Court for good cause shown, "on 23 or before the day of an ex parte motion for a temporary restraining order, counsel applying for the 24 temporary restraining order must deliver notice of such motion to opposing counsel or party." 25

27 notice of the filing of the ex parte application for a TRO or any reasons why such notice should not 28 be required per Federal Rule 65(b)(1) and Local Civil Rule 65-1(b). Pursuant to Civil Local Rule

Federal Rule of Civil Procedure 65(b)(1) states that the court may issue a temporary


As a preliminary matter, Plaintiff's counsel has not alleged any effort to give Defendants 11-4(a)(2), attorneys practicing before this Court must comply with the Local Rules of this Court.

Moreover, Plaintiff has not even served Defendants with the December 14, 2010 Complaint, which 3 would have at least provided Defendants with some notice of the action, let alone Plaintiff's 4 request for the extraordinary remedy of preliminary injunctive relief. 5

6 may constitute irreparable harm. See Saba v. Caplan, No. C 10-02113 SBA, 2010 U.S. Dist. 7 LEXIS 76790, at *13-*14 (N.D. Cal. July 6, 2010). However, Plaintiff has not demonstrated a 8 likelihood of success on the merits, or even that "serious questions" going to the merits are raised. 9

Deficiencies with service and notice aside, the Court recognizes that loss of one's home Plaintiff's four causes of action are all premised on vague allegations that Plaintiff's loan was 10 pooled with other loans in a "securitization scheme" and that Defendants have failed to produce any evidence of the "true note holder's identity." See, e.g., Compl. at 1. Plaintiff's ex parte

United States District Court For the Northern District of California

application for a TRO adds the allegation that Plaintiff has "contacted the defendants to try to work 13 out a loan modification or something similar," but that Defendants continue to proceed with a 14 wrongful foreclosure. See Pl.'s Ex Parte App. for TRO at 2. 15

16 the sale does not have possession of the Note. However, under California law, there is no 17 requirement that the trustee have possession of the physical note before initiating foreclosure 18 proceedings. See, e.g., Yazdanpanah v. Sacramento Valley Mortg. Group, No. C 09-02024 SBA, 19 2009 U.S. Dist. LEXIS 111557, at * 23-*25 (N.D. Cal. Nov. 30, 2009) (citing cases); Wurtzberger 20 (E.D. Cal. Apr. 29, 2010); Benham v. Aurora Loan Servs., No. 09-2059 SC, 2010 U.S. Dist. LEXIS 22 11189, 2010 WL 532685 at *2-*3 (N.D. Cal., Feb. 9, 2010). In addition, under California law, a 23 borrower may not assert quiet title without first paying the outstanding debt on the property. See 24 Miller v. Provost, 26 Cal. App. 4th 1703, 1707 (1994) ("a mortgagor of real property cannot, 25 without paying his debt, quiet his title against the mortgagee") (citation omitted). Plaintiff has not 26 alleged that he has paid the outstanding debt on the Property, or even alleged that he can do so. 27 28

The Court gathers that Plaintiff challenges the foreclosure sale because the trustee noticing v. Resmae Mortg. Corp., No. 2:09-cv-01718-GEB-DAD, 2010 U.S. Dist. LEXIS 51751, at *9-*11 21


Plaintiff has failed to demonstrate likelihood of success on the merits; therefore his ex parte application for a TRO is DENIED.


United States District Court For the Northern District of California


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