Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Cortez v. Mili Mortgage Group

United States District Court, Ninth Circuit

May 20, 2013

JUANITO CORTEZ and PRISCILLA CORTEZ, Plaintiffs,
v.
MILI MORTGAGE GROUP; et al., Defendants.

ORDER DENYING SECOND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER [Docket No.6]

ROGER T. BENITEZ, District Judge.

Presently before the Court is Plaintiffs' Second Ex Parte Application for Temporary Restraining Order. (Docket No.6.) For the reasons stated below, the Ex Parte Application is DENIED.

BACKGROUND

On April 24, 2013, Plaintiffs Juanito Cortez and Priscilla Cortez initiated this action to set aside the trustee's sale of property located at 4330 Paseo de la Vista, Bonita, California, 91902. (Docket No.1.) The Complaint alleges ten claims: (1) set aside trustee's sale; (2) cancel trustee's deed upon sale; (3) quiet title; (4) fraud; (5) forcible detainer; (6) breach of covenant of good faith and fair dealing; (7) violation of California Business & Professions Code ยง 17200; (8) violation of the Truth in Lending Act ("TILA") regulations; (9) declaratory relief; and (10) injunctive relief. ( Id. )

On April 25, 2013, Plaintiffs filed an Ex Parte Application for Temporary Restraining Order ("TRO") to enjoin Defendants "from evicting or barring and interfering with them from re-entry and/or possession of their residential property." ( Ex Parte App. [Docket No.4] at 2.) The Court denied this ex parte application because Plaintiffs did not set forth facts showing that immediate and irreparable injury would result before Defendants could be heard in opposition or certify in writing that any effort had been made to give notice to Defendants and the reasons why it should not be required.

Presently before the Court is Plaintiffs' Second Ex Parte Application for Temporary Restraining Order. (Docket No.6.) Along with the re-filed Ex Parte Application, Plaintiffs' counsel George H. Bye filed a declaration that he had left voicemail messages for Defendants Alegria Real Estate Fund II, LLC, Alegria Real Estate Fund II, LLC, William Gore, and OneWest Bank, FSB, giving them notice of the Ex Parte Application. (Docket No.8.) However, Plaintiffs' counsel did not give notice to the remaining twelve defendants. For three of these defendants, Plaintiffs' counsel asserts that he was unable to locate them. Plaintiffs' counsel claims that the remaining nine defendants are "foreclosure services and title companies with little or no interest in the proceedings at this point." ( Id. at 2-3.)

DISCUSSION

A TRO is a form of preliminary injunctive relief limited to "preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing." Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 439 (1974). To obtain a TRO, similar to a preliminary injunction, Plaintiffs must demonstrate: (1) a likelihood of success on the merits; (2) a risk of irreparable harm absent injunctive relief; (3) the balance of equities tip in favor of injunctive relief; and (4) injunctive relief is in the public interest. Winter v. Natural Res. Def. Counsel, 555 U.S. 7, 20 (2008). In addition, an injunction may be issued "where the likelihood of success is such that serious questions going to the merits [are] raised and the balance of hardships tips sharply in plaintiff's favor, " assuming the other two elements of the Winter test are also met. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011) (internal quotation marks omitted). Ordinarily before issuing a TRO, the Court must hold a hearing or otherwise provide the opposing party with an opportunity to respond. See FED. R. CIV. P. 65(b).

First, in regards to providing notice to the opposing parties, Plaintiffs' counsel has not provided notice to all of the defendants. Attorney Bye filed a declaration that he had left voicemail messages for Defendants Alegria Real Estate Fund II, LLC, Alegria Real Estate Fund II, LLC, William Gore, and OneWest Bank, FSB, giving them notice of the Ex Parte Application. (Docket No.8.) However, Attorney Bye did not give notice to the remaining twelve defendants. ( Id ) Plaintiffs' counsel claims that he is unable to locate and give notice to three of these twelve defendants, and that the remaining nine defendants are "foreclosure services and title companies with little or no interest in the proceedings at this point." ( Id at 2-3.) Attorney Bye does not state that any effort was made to give notice to nine of the defendants in this action.

Second, Plaintiffs fail to establish a likelihood ofsuccess on the merits. The Ex Parte Application does not assert any facts showing that Plaintiffs have a likelihood of success on the merits. A preliminary review of Plaintiffs' Complaint similarly reveals insufficient factual allegations to establish a likelihood of success on the merits. Because the Court finds that Plaintiffs failed to establish a likelihood of success on the merits, the remaining elements of the Winter test need not be addressed.

CONCLUSION

For the reasons stated above, Plaintiffs' Second Ex Parte Application for Temporary Restraining Order is DENIED.

IT IS SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.