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Svetlana Abelyan v. Onewest Bank

June 13, 2011

SVETLANA ABELYAN
v.
ONEWEST BANK, ETC.; ET AL.



The opinion of the court was delivered by: Honorable Christina A. Snyder

CIVIL MINUTES - GENERAL

Title

Present: The Honorable CHRISTINA A. SNYDER

ISABEL MARTINEZ/CATHERINE JEANG LAURA ELIAS N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Jeff Neiderman Brian Thomley

Proceedings: DEFENDANT'S MOTION TO DETERMINE THAT NO TEMPORARY RESTRAINING ORDER IS IN EFFECT OR, IN THE ALTERNATIVE, TO DETERMINE THAT NO PRELIMINARY INJUNCTION SHOULD ISSUE (filed 05/13/11)

INTRODUCTION

To avoid repetition, the Court will not recite the entire factual and procedural record in its January 3, 2011 Order. See Doc. 34. Below, the Court highlights only those facts relevant to the disposition of this motion.

On August 27, 2009, plaintiff Svetlana Abelyan filed suit in Los Angeles County Superior Court against defendants OneWest Bank ("OneWest"), as successor by acquisition of IndyMac Federal Bank; Colorado Federal Savings Bank ("Colorado"); and Does 1 through 10. On August 31, 2009, plaintiff filed an Ex Parte Application for a Temporary Restraining Order to Enjoin the Trustee's Sale of Plaintiffs' Real Property ("TRO").*fn1 Deft.'s RJN, Exh. 4. On August 31, 2009, the Los Angeles County Superior Court entered an order granting the TRO and set an Order to Show Cause re: Issuance of a Preliminary Injunction for October 2, 2009. Deft.'s RJN, Exh. 5. On October 1, 2009, defendant OneWest removed the action to federal court based on subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Accordingly, the October 2, 2009 hearing in the Los Angeles Superior Court was vacated and there has been no order dissolving the

Since this case was removed, the Court has dismissed plaintiff's complaint in its entirety three times, each time with leave to amend, but has not entered an order granting a preliminary injunction. See Docs. 8, 14, 22. On January 3, 2011, the Court entered an order granting in part and denying in part OneWest's motion to dismiss plaintiff's third amended complaint ("TAC'), which is now the operative complaint before the Court. Although OneWest has recorded a Notice of Default and Notice of Trustee's Sale on the subject property, it does not appear that a foreclosure sale on the property is currently scheduled.

On May 15, 2011, OneWest filed the instant motion, styled as a "Motion to Determine that No Temporary Restraining Order Is In Effect Or, In The Alternative, To Determine That No Preliminary Injunction Should Issue." On May 27, 2011, plaintiff filed an opposition to OneWest's motion.*fn2 OneWest replied on June 2, 2011. After carefully considering the arguments set forth by both parties, the Court finds and concludes as follows.

DISCUSSION

OneWest asks this Court to determine that there is no TRO preventing the sale of the subject property. Mot. at 1. OneWest argues that the TRO issued by the Los Angeles County Superior Court has dissolved by its own terms and by operation of law, but, "[i]n the abundance of caution," seeks an order from this Court confirming the TRO's dissolution. Id. In the alternative, OneWest requests that this Court dissolve ...


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