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In re Oner

United States District Court, District of Nevada

December 5, 2014

In re AYDIN T. ONER, Debtor.
v.
CITIMORTGAGE, INC. and NATIONAL DEFAULT SERVICING CORPORATION, et al., Defendants/Appellees. AYDIN T. ONER, Plaintiffs/Appellant, Adv. Proceeding 14-011112-mkn

Bk, 14-14200-mkn Chapter 13 Dismissed

ORDER

Presently before the court is pro se appellant Aydin T. Oner’s motion for a temporary restraining order. (Doc. # 7). Respondents filed a response. (Doc. # 8).

I. Background

This case is an appeal of the bankruptcy court order dismissing appellant’s complaint. Appellant seeks a temporary restraining order to halt the sale of his real property, scheduled for 9:15 AM, December 11, 2014. (See id.).

Though appellant presents few facts in the instant motion, the case appears to be a mortgage and foreclosure related lawsuit. (See doc. # 7). Only a notice of appeal and the instant motion for a temporary restraining order have been filed to date with this court. (See docs. ## 1, 7).

Based on the few exhibits filed with appellant’s notice of appeal, it appears the bankruptcy court dismissed appellant’s complaint because appellant “fail[ed] to plead any plausible non-conclusory facts and/or legal theories in support of any of the stated causes of action” and therefore failed to satisfy the standards of pleading under Federal Rules of Civil Procedure 8 and 12(b)(6). (See doc. # 1). Appellant then filed a notice of appeal with this court. (Doc. # 1).

Appellant asserts that his pleading before Judge Nakagawa in the bankruptcy court was “non-core, ” and therefore, under the Federal Rules of Bankruptcy Procedure, Judge Nakagawa’s dismissal of his complaint was beyond the scope of his authority. See Fed.R.Bankr.P. 7008(a). Federal Rule of Bankruptcy Procedure 7008(a) provides:

In an adversary proceeding before a bankruptcy judge, the complaint, counterclaim, cross-claim, or third-party complaint shall contain a statement that the proceeding is core or non-core and, if non-core, that the pleader does or does not consent to entry of final orders or judgment by the bankruptcy judge.

Appellant claims that the he “never consented to the bankruptcy court entering any final order or judgment, ” and that a temporary restraining order should be imposed because selling his home and pressuring his tenants to leave constitutes irreparable harm and undue hardship under the test for a temporary restraining order. (See doc. # 7) (emphasis original). However, appellant presents no exhibits or other evidence to support his claims.

Respondents assert that appellant has engaged in a campaign of dilatory conduct to delay the foreclosure of his property, noting that appellant waited nearly two months after the notice of scheduled sheriff’s sale to file the instant motion for a temporary restraining order. (See doc. # 8). Respondents request the temporary restraining order be denied in its entirety.

II. Legal Standard

A court may issue a temporary restraining order when the moving party provides specific facts showing that immediate and irreparable injury, loss, or damage will result before the adverse party’s opposition to a motion for preliminary injunction can be heard. Fed.R.Civ.P. 65. “The purpose of a temporary restraining order is to preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial nature is designed merely to prevent irreparable loss of rights prior to judgment.” Estes v. Gaston, no. 2:12-cv-1853-JCM- VCF, 2012 WL 5839490, at *2 (D. Nev. Nov. 16, 2012) (citing Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)). “Thus, in seeking a temporary restraining order, the movant must demonstrate that the denial of relief will expose him to some significant risk of irreparable injury.” Id. (quoting Associated Gen. Contractors of Cal. v. Coalition of Econ. Equity, 950 F.2d 1401, 1410 (9th Cir. 1991)).

The Supreme Court has stated that courts must consider the following elements in determining whether to issue a temporary restraining order and preliminary injunction: (1) a likelihood of success on the merits; (2) likelihood of irreparable injury if preliminary relief is not granted; (3) balance of hardships; and (4) advancement of the public interest. Winter v. N.R.D.C., 555 U.S. 7, 20 ...


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