UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
November 9, 2011
GREGORY HOUSE AND JENNIFER HOUSE,
PAUL SANDNER MOLLER, ROSA MARIE MOLLER, DANA FOSS AND EDWARD R. FOSS, DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
On November 2, 2011, Plaintiffs Gregory House and Jennifer House ("Plaintiffs") filed a Application for Temporary Restraining Order in this matter, after a Trustee's Sale on Deeds of Trust for the property that is the subject of this litigation was scheduled for November 15, 2011.
Plaintiffs allege that if Defendants Dana and Edward Foss are permitted to proceed with that foreclosure sale, Plaintiffs will be precluded from obtaining specific performance on their right of first refusal (as specified in their agricultural lease with Defendant Paul Moller dated February 5, 2002) should the property at issue be sold. The present temporary restraining order was filed to prevent any foreclosure sale from occurring until after Plaintiffs' Motion for Preliminary Injunction(ECF No. 27), presently scheduled to be heard on December 1, 2011, has been ruled upon.
The Temporary Restraining Order Checklist attached to Plaintiffs' Application indicates that counsel for Defendants Foss, Douglas Akay, never responded to Plaintiffs' request that he stipulate to delay the foreclosure sale until after the preliminary injunction is adjudicated, thus obviating any need for a temporary restraining order. By Minute Order filed November 3, 2011, (ECF No. 39) this Court ordered that Defendants either oppose, or file a Statement of Non-Opposition to Plaintiffs' request for temporary restraining order, not later than November 7, 2011 at 12:00 p.m. Despite that unequivocal order, Defendants have filed nothing in response to Plaintiffs' Application. The Court will construe the absence of any opposition as consent to Plaintiffs' temporary restraining order request. Plaintiff's Application for Temporary Restraining Order (ECF No. 35) is therefore GRANTED. The November 10, 2011 hearing date for the Application for Temporary Restraining Order is hereby vacated.
Defendants Edward and Dana Foss, either in their individual capacity or in their capacity or capacities as trustees on their notes of deed of trust, are ordered not to conduct or prepare for a Trustee's Sale on the Deeds of Trust, until further order from this Court, for the property that is the subject of the instant lawsuit. The sale currently calendared for November 15, 2011, as described in the Notice of Trustees Sale (see Exhibit 8 to the Decl. of Greg House, ECF No. 29), shall not be conducted, and shall be and hereby is vacated. This temporary restraining order will remain in effect until after Plaintiffs' Motion for Preliminary Injunction (ECF No. 27) has been adjudicated following the hearing on that Motion on December 1, 2011.
No bond will be required.
This Order is issued on the date below at 4:30 p.m. IT IS SO ORDERED.
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