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Le v. 1St National Lending Services

United States District Court, Ninth Circuit

June 7, 2013

ANDY V. LE, and LIEN THI NGUYEN, Plaintiffs,
v.
1st NATIONAL LENDING SERVICES (in its capacity as originating lender and purported mortgage servicer), et al., Defendants.

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER

LUCY H. KOH, District Judge.

Plaintiffs Andy V. Le and Lien Thi Nguyen ("Plaintiffs") have filed an application for a temporary restraining order enjoining unlawful detainer proceedings in Santa Clara County Superior Court, Case No. 113CV245896 ("the Superior Court Action"). Plaintiffs' application also requests that the Court issue an order to show cause why the proceedings should not be preliminarily enjoined. The Court DENIES Plaintiffs' application, for the reasons discussed below.

I. BACKGROUND

On June 6, 2013, Plaintiffs filed the following documents: a complaint in the instant action asserting ten causes of action, including a variety of state law causes of action and a violation of 15 U.S.C. 1614(g) (the Truth in Lending Act); a document entitled "Ex Parte Application for Temporary Restraining Order and for Order to Show Cause Why Defendants Should Not Be Preliminarily Enjoined from Proceeding with Unlawful Detainer in State Court" ("Application"); a supporting declaration of Andy V. Le; and a proposed Order ("Proposed Order"). The documents name the following defendants: "1st National Ending Services (in its capacity as originating lender and purported mortgage servicer), U.S. Bancorp d/b/a/U.S. Bank, National Association, as Trustee for Lehman XS 2007-4N, aka LXS 2007-4N; Structured Asset Securities Corporation; Aurora Loan Services LLC; and its successors and assigns; IndyMac Mortgage Serives [sic], a division of One West Bank, FSB as purported "Servicer"; Lehman Brothers Holdings Inc., or any "successor in interest thereto"; Greenhead Investments, Inc.; Meridian Foreclosure Service; Dianne K. Burnett, personally, and in her capacity as President of Meridian Foreclosure Service; Maggie Salac, personally, and in her capacity as Vice President of Meridian Foreclosure Service; Skyway Investments LLC; and Principal Capital LLC, " (collectively, "Defendants).

The Application alleges that Plaintiffs lost title to their home through a wrongful foreclosure, and that Plaintiffs are facing imminent eviction. The Application requests that the Court enjoin all Defendants[1] from proceeding in the unlawful detainer action against Plaintiffs that is currently pending before the Superior Court.

The Application further alleges as follows:

Unlawful detainer cases are summary proceedings, and Plaintiffs' answer is due tomorrow, upon order of the Superior Court denying Plaintiffs Motions to Dismiss, and to Continue (styled as "REQUEST FOR HEARING TO BE MOVED TO NEXT AVAILABLE DATE AFTER JUNE 30, 2013"). Plaintiffs will be homeless by the time Plaintiffs' complaint will be heard.

The Application lists the contact information for the counsel of record for the "sole Defendants whose counsel has been identified." However, Plaintiffs have not represented that any attempt has been made to serve or notify any Defendants, or offered any explanation for the lack of service.

II. LEGAL STANDARDS

The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. Brown Jordan Int'l, Inc. v. Mind's Eye Interiors, Inc., 236 F.Supp.2d 1152, 1154 (D. Haw. 2002); Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D. Cal.1995). "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. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The party seeking the injunction bears the burden of proving these elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009). The issuance of a preliminary injunction is at the discretion of the district court. Indep. Living Ctr. v. Maxwell-Jolly, 572 F.3d 644, 651 (9th Cir. 2009).

Federal Rule of Civil Procedure 65(b)(1) states that a court may issue a temporary restraining order without notice to the opposing party only if: "(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Additionally, Civil Local Rule 65-1(b) states that, unless relieved by the Court for good cause shown, "on or before the day of an ex parte motion for a temporary restraining order, counsel applying for the temporary restraining order must deliver notice of such motion to opposing counsel or party."

III. DISCUSSION

A. Relief Barred by Anti-Injunction Act

The only relief requested in Plaintiff's Application is an injunction of the Superior Court Action. However, numerous district courts have found that the Anti-Injunction Act, 28 U.S.C. ยง 2283, prohibits a federal district court from issuing a temporary restraining order staying unlawful detainer proceedings in state court. See Farah v. Wells Fargo Home Mortgage, 13-CV-1127 PSG, 2013 WL 1397405 (N.D. Cal. Apr. 5, 2013); Michener v. Wells Fargo Home Mortgage, C 12-2003 PJH, 2012 WL 3027538 (N.D. Cal. July 24, 2012); Fajardo v. Ross, 1:12-CV-00217-AWI, 2012 WL 2589244 (E.D. Cal. July 3, 2012); Carrasco ...


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