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Kris Kaszuba, et al v. Fidelity National Default Injunction Services

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 10, 2011

KRIS KASZUBA, ET AL.,
PLAINTIFFS,
v.
FIDELITY NATIONAL DEFAULT INJUNCTION SERVICES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING PLAINTIFFS' AMENDED EX PARTE MOTION FOR A PRELIMINARY

This case comes before the Court on Plaintiffs' amended ex parte motion for a preliminary injunction preventing Defendants from foreclosing on or selling Plaintiffs' residence. For the following reasons, Plaintiffs' motion for a preliminary injunction is granted.

I.

BACKGROUND

This case involves a loan obtained by Plaintiffs, which is secured by a Deed of Trust on their property. A foreclosure sale was scheduled for February 4, 2011. (Complaint at 1.) On January 21, 2011, Plaintiffs filed a Complaint against Defendants Fidelity National Default Services, OCTFCU Mortgage Co. LLC, and Schools First Federal Credit Union. (Doc. 1.) The Complaint sets forth eight claims for relief: (1) unfair and deceptive practices, (2) negligence, (3) breach of fiduciary duties, (4) fraud, (5) predatory lending practices, (6) to set aside and vacate the trustee's sale, (7) rescission of the Deed of Trust, and (8) application for a temporary restraining order ("TRO"). Plaintiffs included an application for a TRO and an order to show cause why a preliminary injunction should not be issued as a claim for relief in their Complaint. On January 24, 2011, the Court issued an Order denying Plaintiffs' application for a TRO on the basis that Plaintiffs had failed to demonstrate a likelihood of success on the merits of their claims and had failed to address whether the balance of equities tips in their favor and whether the injunction is in the public interest. (Doc. 2.) On February 2, 2011, Plaintiffs filed an amended motion for a TRO and a preliminary injunction, seeking this Court's order enjoining the foreclosure sale. (Doc. 4.) The Court issued an Order on February 4, 2011 granting Plaintiffs' amended motion for a TRO and ordering Defendants to show cause, on or before February 8, 2011, why a preliminary injunction should not be issued enjoining Defendants from taking such actions until termination of this case. (Doc. 5.) The Court scheduled a hearing on Plaintiffs' motion for a preliminary injunction for February 10, 2011 at 1:30 p.m. Plaintiffs Kris Kaszuba and Antonia Bebar-Kaszuba appeared at the hearing. Defendants did not appear.

II.

DISCUSSION

A. Preliminary Injunction Standard

Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 376 (2008). A party seeking preliminary injunctive relief under Federal Rule of Civil Procedure 65 must show "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." Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)(quoting Winter, 129 S. Ct. at 374). 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. See Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049 (9th Cir. 2010). Under the sliding scale approach, the elements of the preliminary injunction test are balanced and, where a plaintiff can make a stronger showing of one element, it may offset a weaker showing of another. Id. "Therefore, 'serious questions going to the merits' and a hardship balance that tips sharply towards the plaintiff can support issuance of an injunction, so long as the plaintiff also shows a likelihood of irreparable injury and that the injunction is in the public interest." Id. at 1053.

For the reasons set forth in the Court's February 3 Order, the Court finds Plaintiffs have shown each of the elements necessary for the issuance of a preliminary injunction.

B. Notice

Under Federal Rule of Civil Procedure 65(a)(1), "[t]he Court may issue a preliminary injunction only on notice to the adverse party." Defendants have not yet appeared in this action and did not appear at the hearing on Plaintiffs' motion for a preliminary injunction. However, Plaintiffs filed with the Court Declarations of Service indicating each of the Defendants was served with a copy of the Court's Order Granting Plaintiffs' Amended Application for A Temporary Restraining Order on February 3, 2011 by a professional process server. (Docs. 12-14.) Accordingly, the Court is satisfied Defendants were given notice of Plaintiffs' motion for a preliminary injunction and the hearing scheduled thereon.

C. Bond

Under Federal Rule of Civil Procedure 65(c), "[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." Accordingly, Plaintiffs shall post a bond in the amount of $1,500.00 by 5:00 p.m. on February 18, 2011.

IV.

CONCLUSION For the foregoing reasons, Plaintiffs' motion for a preliminary injunction is granted. Defendants and their agents, employees, representatives, successors, partners, assigns, and any and all acting in concert or participation with them are enjoined from transferring, dispersing, encumbering, // // // // // or otherwise dissipating Plaintiffs' real property located at 3857 Pell Place, Unit # 301, San Diego, California 92130. Plaintiffs shall forthwith serve a copy of this Order upon all Defendants.

IT IS SO ORDERED.

20110210

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