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Rowe v. Naiman

United States District Court, C.D. California

April 29, 2014

VERONICA J. ROWE, Plaintiff,
v.
RANDALL D. NAIMAN ESQ - STATE BAR NO. 81048; and DOES 1 through 10, inclusive, Defendants.

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER

OTIS D. WRIGHT, II, District Judge.

I. INTRODUCTION

In June 2012, non-party Homesales, Inc. purchased Plaintiff Veronica J. Rowe's residence at a trustee's sale. On April 25, 2014, she filed this action against Defendant Randall D. Naiman, who she alleges used forged and fraudulent documents to foreclose her mortgage note. Rowe also brought this temporary-restraining-order application, ostensibly requesting that the Court enjoin Naiman's eviction-related actions against her. But after reviewing Rowe's Complaint, the Court finds that she has failed to demonstrate that she will suffer irreparable harm without an emergency injunction. The Court therefore DENIES her Application.

II. FACTUAL BACKGROUND

On April 21, 2006, Rowe executed a promissory note and deed of trust in the name of non-defendant Encore Credit Corporation for the purchase of the property located at 19350 Sherman Way, Unit 216, Reseda, California 91335 ("the property"). (Compl. ¶¶ 5, 26.) Encore then sold Rowe's loan to non-defendant Washington Mutual Bank ("WaMu"). ( Id. ¶ 26.) Rowe alleges that WaMu subsequently transferred the note into a mortgage-backed security, which was then sold off to investors around the world. ( Id. )

After WaMu failed, the Federal Deposit Insurance Company sold WaMu's assets to JPMorgan Chase Bank, NA ("JPM"). ( Id. ¶ 15.) But Rowe alleges that under the plain terms of that agreement, JPM did not become WaMu's successor in interest. ( Id. ¶ 15) Rather, Rowe asserts, since WaMu's closure, the FDIC as receiver has controlled WaMu. ( Id. ) Accordingly, Rowe asserts JPM did not acquire WaMu's mortgage-backed securities. ( Id. )

Rowe argues that despite the fact that her loan was transferred to the FDIC incident to the WaMu Receivership-and not in fact sold to JPM-Naiman instituted eviction proceedings on behalf of JPM. ( Id. ¶ 16-17.) She asserts that JPM was able to obtain illegal title to the property by way of Naiman's fraudulent sworn eviction complaints and representations that the foreclosure proceedings were in compliance with California Code of Civil Procedure section 2924. ( Id. ¶ 27.)

On March 25, 2009, California Reconveyance Company, acting as trustee, recorded a Notice of Default on the property and substituted JPM Specialty Mortgage, LLC as Trustee. ( Id. ¶ 26.) On June 4, 2012, JPM Specialty Mortgage, as substituted trustee, sold the property to Homesales-a JPM company-for $130, 785.00. ( Id. ¶ 29-31.)

On April 52, 2014, Rowe filed this action against Naiman, alleging claims for common-law fraud; conspiracy to defraud; mail fraud, 18 U.S.C. § 1341; wire fraud, 18 U.S.C. § 1343; racketeering, 18 U.S.C. § 1952; interstate transportation of stolen property 18 U.S.C. § 2314; unjust enrichment; civil conspiracy; and civil violation of the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962. (ECF No. 3.)

Rowe also included an application for a temporary restraining order in her Complaint. She requests that the Court immediately enjoin "all eviction activity" engaged in by Naiman during the pendency of this litigation.

III. LEGAL STANDARD

A court may issue a temporary restraining order 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 solely 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. Bhd. of Teamsters , 415 U.S. 423, 439 (1974).

"The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction." Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co. , 887 F.Supp. 1320, 1323 (N.D. Cal. 1995); see also Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc. , 240 F.3d 832, 839 n.7 (9th Cir.2001). A plaintiff seeking a preliminary injunction must establish (1) a likelihood of success on the merits; (2) a likelihood that plaintiff will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council , 555 U.S. 7, 20 (2008).

The Ninth Circuit employs a "sliding scale" approach to Winter 's four-element test. Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011). Under this approach, a preliminary injunction may issue if the plaintiff raises "serious questions going to the merits" and demonstrates that "the balance of hardship tips sharply towards the plaintiff's favor, " but only so long as the plaintiff also demonstrates that irreparable harm ...


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