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Marion Russell Harris, et al. v. Wells Fargo Bank

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 13, 2011

MARION RUSSELL HARRIS, ET AL. PLAINTIFFS,
v.
WELLS FARGO BANK, N.A., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

On December 12, 2011, Plaintiffs, proceeding pro se, filed their "Complaint for Emergency Injunctive, Declaratory and Other Relief, to Stay Foreclosure and Complaint for Unlawful Foreclosure" (ECF No. 1). Currently before the Court is Plaintiff's request for a temporary restraining order to prevent the foreclosure sale of their real property on December 14, 2011. See ECF No. 1 at 22-24. For the following reasons, Plaintiffs' request is DENIED.

First, Plaintiffs' request is denied because they have failed to comply with the provisions of Local Rule 231 regarding temporary restraining orders. Specifically, Local Rule 231(c)(4) requires Plaintiffs to file an affidavit in support of the existence of an irreparable injury. No such affidavit was filed here. In addition, Local Rule 231(c)(5) requires"an affidavit detailing the notice or efforts to effect notice to the affected parties or counsel or showing good cause why notice should not be given." Plaintiffs did not include an affidavit detailing their efforts, if any, at notifying Defendants. Furthermore, the Summons accompanying the Complaint does not list addresses for any of the named Defendants. Finally, Local Rule 231 (c)(6)-(8) requires Plaintiffs to submit proposed orders for the temporary restraining order and the hearing for preliminary injunction. Plaintiffs have not submitted either proposed order.

Plaintiffs have been on notice of the foreclosure actions by Defendants since 2008. While the Court takes notice of Plaintiffs' status as pro se litigants, Plaintiffs have provided no explanation for why they waited until less than forty-hours remain before the foreclosure sale to file their Complaint, nor have they demonstrated any exigent circumstances justify their failure to comply with Local Rule 231.

Regardless, notwithstanding Plaintiffs' above procedural failures, their Complaint is substantively inadequate as well. Issuance of a temporary restraining order, as a form of preliminary injunctive relief, is an extraordinary remedy, and Plaintiffs have the burden of proving the propriety of such a remedy by clear and convincing evidence.

See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441 (1974). Certain prerequisites must be satisfied prior to issuance of a temporary restraining order. See Granny Goose, 415 U.S. at 439 (stating that the purpose of a temporary restraining order is "preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing [on the preliminary injunction application], and no longer"). In general, the showing required for a temporary restraining order is the same as that required for a preliminary inunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).

To prevail, "[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. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 374 (2008). Alternatively, under the so-called sliding scale approach, as long as the Plaintiffs demonstrate the requisite likelihood of irreparable harm and show that an injunction is in the public interest, a preliminary injunction can still issue so long as serious questions going to the merits are raised and the balance of hardships tips sharply in Plaintiffs' favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (finding that sliding scale test for issuance of preliminary injunctive relief remains viable after Winter).

Plaintiffs have failed to make the requisite showing that they are either likely to succeed on the merits of their claims or that they have raised serious questions going to those merits. Specifically, in regard to their motion for a temporary restraining order, Plaintiffs allege that Defendants must have actual physical possession of the note to proceed with a non-judicial foreclosure. See Complaint, ECF No. 1 at 22-24. However, physical possession of the original promissory note is not a pre-requisite to initiating foreclosure proceedings. Cal. Civ.Code § 2924(a)(1); see also Farner v. Countrywide Home Loans, No. 08-CV-2193 BTM, 2009 WL 189025, at *2 (S.D.Cal. Jan.26, 2009). More generally, Plaintiffs allegations fail to satisfy the liberal pleading standards as set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Throughout the Complaint, Plaintiffs' allegations are confusing and conclusory, directed generally at multiple Defendants without differentiating between the actions of one defendant and another. Furthermore, the Court concludes that, under either the Winter or Cottrell standard, Plaintiffs have failed to demonstrate that they have satisfied the elements for injunctive relief.

Accordingly, Plaintiffs' request for a temporary injunctive relief as indicated in their "Complaint for Emergency Injunctive, Declaratory and Other Relief, to Stay Foreclosure and Complaint for Unlawful Foreclosure" (ECF No. 1) is DENIED.

IT IS SO ORDERED.

20111213

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