United States District Court, C.D. California
ORDER DENYING PLAINTIFFS’ SECOND EX PARTE
APPLICATION FOR A TEMPORARY RESTRAINING ORDER [28]
OTIS
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
On
August 4, 2016, Plaintiffs Manuel and Sharon Womandress filed
a second ex part application for a temporary restraining
order seeking to enjoin Defendant Specialized Loan Servicing
LLC from proceeding with a foreclosure sale on August 8,
2016. (ECF No. 24.) Defendant opposed. (ECF Nos. 25.) For the
reasons discussed below, the Court DENIES Plaintiffs’
application. (ECF No. 24.)
II.
FACTUAL BACKGROUND
Plaintiffs
are the owners of a house located in Temecula, California.
(First Am. Compl. (“FAC”) ¶ 1.) On March 20,
2007, Plaintiffs received a loan from Residential Mortgage
Capital in the amount of $799, 950 in order to purchase this
house. (Req. for Judicial Notice, Ex. 1, ECF No. 21.) At some
point, Defendant became Plaintiffs’ loan servicer.
(See FAC ¶ 7.) Plaintiffs allege that Defendant
“intentionally overstated Plaintiffs’ income on
the loan application, ” failed to make numerous
disclosures required under the Truth in Lending Act, and
dual-tracked the mortgage in violation of the California
Homeowner Bill of Rights Act. (Id. ¶¶ 12,
14-15, 24, 34- 35.)
On
April 11, 2016, Plaintiffs filed this action in the Riverside
Superior Court. (ECF No. 1.) On May 13, 2016, Defendant
removed the case to federal court. (Id.) On July 3,
2016, Plaintiffs filed a FAC, in which they assert the
following causes of action: (1) violation of California
Business and Professions Code section 17200; (2) breach of
the implied covenant of good faith and fair dealing; and (3)
violation of the California Homeowners Bill of Rights Act.
(ECF No. 15.) On July 6, 2016, Plaintiffs filed an ex parte
application for a temporary restraining order, seeking to
enjoin a foreclosure that was scheduled to go forward on July
8, 2016. (ECF No. 17.) The Court denied that TRO application,
concluding that Plaintiffs had not shown a probability of
prevailing on the merits of their claims or that the equities
and public interest were in their favor. (ECF No. 23.)
On
August 4, 2016, Plaintiffs filed a second ex parte
application for a TRO seeking to enjoin Defendant from
proceeding with a foreclosure sale on August 8, 2016. (ECF
No. 24.) The following day, Defendant filed a timely
opposition. (ECF Nos. 25.) That ex parte application is now
before the Court for consideration.
III.
LEGAL STANDARD
“A
preliminary injunction is ‘an extraordinary and drastic
remedy, one that should not be granted unless the movant,
by a clear showing, carries the burden of
persuasion.’” Lopez v. Brewer, 680 F.3d
1068, 1072 (9th Cir. 2012) (emphasis in original) (quoting
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam)). To prevail, the moving party must show: (1) a
likelihood of success on the merits; (2) a likelihood that
the moving party will suffer irreparable harm absent
preliminary injunctive relief; (3) that the balance of
equities tips in the moving party’s favor; and (4) that
preliminary injunctive relief is in the public interest (the
“Winter factors”). Winter v.
Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20
(2008); Lockheed Missile & Space Co. v. Hughes
Aircraft Co., 887 F.Supp. 1320, 1323 (N.D. Cal. 1995)
(“The standard for issuing a temporary restraining
order is identical to the standard for issuing a preliminary
injunction.”). “Under Winter,
plaintiffs must establish that irreparable harm is
likely, not just possible, in order to obtain a
preliminary injunction.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011)
(original emphasis). In the Ninth Circuit,
“‘serious questions going to the merits’
and a hardship balance that tips sharply toward the plaintiff
can [also] support issuance of an injunction, assuming the
other two elements of the Winter test are also
met.” Id. at 1132, 1135 (holding that the
“sliding scale” test remains viable “so
long as the plaintiff also shows that there is a likelihood
of irreparable injury and that the injunction is in the
public interest”).
IV.
DISCUSSION
This
application is virtually identical to Plaintiffs’ prior
ex parte application, yet curiously does nothing to address
the reasons for the Court’s denial of that application.
Based on Plaintiffs’ moving papers, the Court sees no
reason to depart from its prior conclusion that Plaintiffs
have not met the Winter factors. (See ECF
No. 23.) Consequently, the Court DENIES Plaintiffs’
application.
V.
CONCLUSION
For the
reasons discussed above, the Court DENIES Plaintiffs’
Ex Parte Application for a Temporary ...