United States District Court, E.D. California
BETTINA L. FARREN; STEVE FARREN, individuals, Plaintiffs,
SELECT PORTFOLIO SERVICING, INC.; U.S. BANK AS TRUSTEE ON BEHALF OF THE HOLDERS OF THE WAMU MORTAGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HY6; JPMORGAN CHASE BANK, N.A.; QUALITY LOAN SERVICE CORPORATION; and DOES 1 through 50, inclusive, Defendants.
ORDER DENYING PLAINTIFFS' EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER
MENDEZ, UNITED STATES DISTRICT JUDGE
Farren ("Mrs. Farren") and Steve Farren ("Mr.
Farren") (collectively "Plaintiffs") applied
ex parte for a temporary restraining order ("TRO")
(Doc. #13). As explained below, Plaintiffs are not
likely to succeed on the merits of their claims. Thus, the
Court denies Plaintiffs' motion for a TRO.
March 2007, Plaintiffs added Mrs. Farren's brother,
Steven Hinrichs, and Mr. Hinrichs' wife to the title of
real property located at 2045 Salmon Falls Road in El Dorado
Hills, California ("Subject Property"). Declaration
of Bettina Farren ("Mrs. Farren Decl.") ¶ 8. A
$1, 464, 000.00 loan was taken out and secured by the Subject
Property. Compl. ¶ 12. Plaintiffs signed the Deed of
Trust. Id. ¶ 16. But, Plaintiffs did not sign
the Adjustable Rate Note (the "Note"). Exh. A to
SPS's Request for Judicial Notice (Doc. #9). Only Mr. and
Mrs. Hinrichs signed the Note. Id.
December 2008, JP Morgan Chase Bank ("Chase")
issued a notice of default against the Subject Property.
Compl. ¶ 18. In January 2016, Quality Loan Service
Corporation ("Quality") became the trustee of the
Deed of Trust. Id. ¶ 24. In March 2016, Quality
recorded a Notice of Trustee's Sale for the Subject
Property for April 14, 2016. Id. ¶ 25.
April 8, 2016, Mrs. Farren submitted a complete loan
modification application to Defendant Select Portfolio
Servicing ("SPS"). Mrs. Farren Decl. ¶ 11.
Mrs. Farren has not received any acknowledgement of the
receipt of her application and has not received notice about
whether the application has been denied. Id.
¶¶ 11, 12. Mrs. Farren also made several calls to
SPS to discuss modification of the loan. Id.
¶¶ 48-50. Alison Luna, an SPS representative, told
Mrs. Farren that SPS could not postpone the foreclosure sale
because Mrs. Farren's name was not on the Note.
Id. ¶ 50.
April 14, 2016, Plaintiffs obtained a TRO in El Dorado
Superior Court which enjoined Defendants from conducting the
trustee's sale of the Subject Property. Exh. 7 to Request
for Judicial Notice (Doc. #3). On May 19, 2016, Defendant
Chase removed the case to federal court (Doc. #1). The
foreclosure sale is now set for July 11, 2016. Mrs. Farren
Decl. ¶ 4. Plaintiffs submitted a motion for a TRO on
July 6, 2016 to enjoin the foreclosure sale scheduled for
July 11 (Doc. #13). Defendants did not file an opposition.
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 Assn's 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 D. 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).
removed this case to federal court on May 19, 2016.
Plaintiffs did not file their TRO until nearly six weeks
later and only five days before the scheduled trustee's
sale. Plaintiffs' attorney states that he received notice
on June 24, 2016 from defense counsel stating that SPS would
not postpone the trustee's sale. Declaration of John
Sargetis ¶ 4. Plaintiffs waited almost two weeks to file
the application for a TRO. Plaintiffs' counsel's
excuse for this delay is that he has "at the same time
these past two weeks been working on pre exiting [sic]
deadlines on numerous other cases." Id.
Plaintiffs' delay in filing the TRO is of concern to the
Court. However, Plaintiffs' TRO application will not be
denied on this ground. 2. Likelihood of Success on the
Merits Plaintiffs argue that they are likely to succeed
on the merits of their claims on two grounds. First,
Plaintiffs argue they are likely to succeed on their second
cause of ...