United States District Court, E.D. California
ORDER GRANTING PLAINTIFF' S EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER AND ORDER TO DEFENDANTS TO
SHOW CAUSE REGARDING PRELIMINARY INJUNCTION
A. MENDEZ, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Gordon McMahon's
("Plaintiff") ex parte application for a temporary
restraining order ("TRO") and order to show cause
regarding preliminary injunction ("Motion") (Doc.
The record is confined to the allegations Plaintiff makes in
his Complaint (Doc. #1) and his Motion and the opposition
(Doc. #6) submitted by defendants JPMORGAN CHASE BANK, N.A.
and Select Portfolio Servicing, Inc. ("SPS")
(collectively "Defendants"). On this limited
record, and as explained below, the Court grants
Plaintiff's motion for a TRO.
April 2005, Plaintiff executed a promissory note in the
amount of $416, 600.00 that was secured by a deed of trust
encumbering real property located at 304 Seawind Drive in
Vallejo, California ("Subject Property"). Plaintiff
defaulted under the terms of his loan on September 1, 2007. A
notice of default was recorded on September 8, 2010.
has submitted at least four loan modification applications
since default. Plaintiff alleges that his loan servicers
failed to review any of these applications in good faith. His
current loan servicer, SPS, invited him to submit a fifth
loan modification application on April 26, 2016. By letter
dated June 20, 2016, SPS acknowledged that Plaintiff had
requested mortgage assistance but stated that Plaintiff had
no available options. Also on June 20, 2016, Plaintiff mailed
his fifth loan modification application to SPS. The
application discusses a material change in Plaintiff's
circumstances. SPS received Plaintiff's application on
June 21, 2016. Plaintiff submitted additional documents, as
requested by SPS, on June 22, 2016. Plaintiff is not aware if
the June 20, 2016 SPS letter was in response to Plaintiff s
fifth loan modification application. The letter fails to
provide a reason for the denial or a 30-day period to appeal
scheduled to conduct a foreclosure sale on the subject
property on June 29, 2016. In light of the pending
foreclosure sale, Plaintiff requests a TRO to "allow a
good faith review of his loan modification application to
prevent an unnecessary foreclosure of his family home."
Mot. at 3. Plaintiff's counsel emailed SPS's agent
about Plaintiff's ex parte Motion. SPS filed an
opposition (Doc. #6).
Rule of Civil Procedure ("Rule") 65 provides
authority to issue either preliminary injunctions or TROs. A
plaintiff seeking a preliminary injunction 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." Am. Trucking Ass'ns v. City of Los
Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting
Winter v. Natural Res. Def. Council, 555 U.S. 7, 20
(2008)). The requirements for a TRO are the same.
Stuhlbarg Int'l Sales Co. v. John P. Brush &
Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). A party
seeking an ex parte TRO must "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 "the movant's attorney [must]
certif[y] in writing any efforts made to give notice and the
reasons why it should not be required." Fed.R.Civ.P.
65(b). Ex parte TROs are appropriate only when necessary to
prevent irreparable harm and should be imposed only "so
long as is necessary to hold a hearing." Granny
Goose Foods, Inc. v. Bhd. of Teamsters & Auto
Truck Drivers Local No. 70 of Alameda Cty., 415 U.S.
423, 439 (1974).
Rule 231(b) states that courts "will consider whether
the applicant could have sought relief by motion for
preliminary injunction at an earlier date without the
necessity of seeking last-minute relief by motion for
temporary restraining order." If the Court finds that
the movant unduly delayed in seeking injunctive relief,
"the Court may conclude that the delay constitutes
laches or contradicts the applicant's allegations of
irreparable injury and may deny the motion solely on either
ground." Local Rule 231(b).
argue that the TRO should be denied for failure to comply
with Local Rule 231(b). Local Rule 231(b) is discretionary.
Without making any findings as to whether Plaintiff unduly
delayed the filing, the Court will not deny the TRO at this
point solely on the basis of this procedural rule.
Likelihood of ...