IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 22, 2012
RENEE L. MARTIN, PLAINTIFF,
LITTON LOAN SERVICING, LP; OCWEN LOAN SERVICING, LLC; AND DOES 1-30, INCLUSIVE, DEFENDANTS.
FINDINGS AND RECOMMENDATIONS
On August 20, 2012, plaintiff, who is proceeding pro se, filed a motion for a temporary restraining order ("TRO"). Dckt. No. 22. Her complaint alleges various state and federal claims related to property located at 2428 Covered Wagon Circle, Elverta, California 95626 (the "subject property"). Compl., Dckt. No. 1. Plaintiff now seeks to enjoin defendants, including Doe Defendants 1 and 2, who plaintiff now identifies as Western Progressive, LLC and Deutsche Bank National Trust, from "attempting to foreclose on [the subject property] or engaging in any other conduct adverse to Plaintiff regarding the [subject property]." Dckt. No. 22 at 4. Plaintiff seeks a temporary restraining order and an order to show cause regarding a preliminary injunction.*fn1 Id.
Plaintiff previously moved for a temporary restraining order in April 2012, in which she sought an order "that Ocwen or its agents acting on their behalf are [sic] refrain from foreclosing upon, selling, transferring, conveying, evicting or any other conduct adverse to Plaintiff regarding" the subject property; that Ocwen Loan Servicing and their agents correct misreported credit information; and that Ocwen refrain from sending mail to the subject property. Dckt. Nos. 2, 3. That motion was denied because plaintiff failed to allege that foreclosure or any other injury was imminent and plaintiff failed to show that a temporary retraining order was necessary to protect the status quo since she did not adequately show that irreparable injury was likely to result if a temporary restraining order was not issued.*fn2 Dckt. No. 7 at 2-3.
A temporary restraining order may be issued upon a showing "that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the status quo and to prevent irreparable harm "just so long as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974).
"The standards for granting a temporary restraining order and a preliminary injunction are identical." Haw. County Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); cf. Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a preliminary injunction is "substantially identical" to an analysis of a temporary restraining order). In order to be entitled to preliminary injunctive relief, a party must demonstrate "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." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 9 (2008)). Alternatively, "'serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
As previously noted by this court, the loss of one's home is sufficient to satisfy the irreparable injury element. See Dckt. No. 7 at 2 (citing Park Village Apartment Tenants Ass'n v. Mortimer Howard Trust, 636 F.3d 1150 (9th Cir. 2011) and Sundance Land Corp. v. Cmty. First Fed. Sav. & Loan Ass'n, 840 F.2d 653, 661 (9th Cir. 1988)). However, the TRO motion and plaintiff's complaint reveal that plaintiff does not reside at the subject property and therefore would not be subject to losing her residence as a result of any foreclosure sale; rather, plaintiff's tenants, who are not parties to this action or to the request for injunctive relief, are the individuals who risk losing their home. Dckt. No. 22 at 5; Dckt. No. 1, ¶ 22. Additionally, plaintiff's current TRO motion once again fails to sufficiently alleged that foreclosure or any other injury is imminent. Although plaintiff has alleged that a Notice of Default and Election to Sell Under Deed of Trust has been filed against the property and that "Plaintiff believes that if the Court does not oversee defendants' unlawful conduct, defendants will lock the tenants out unlawfully 'immediately,' if the Court denies a temporary restraining order," Dckt. No. 22 at 4-5, she has not alleged when the sale is scheduled to occur or any basis for her belief that the tenants would be locked out "immediately." Therefore, plaintiff has once again failed to show that a temporary retraining order is necessary to protect the status quo.*fn3 See Winter, 555 U.S. at 22 ("Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.").
Accordingly, it is HEREBY RECOMMENDED that plaintiff's motion for a temporary restraining order and an order to show cause regarding a preliminary injunction, Dckt. No. 22, be denied.*fn4
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).