United States District Court, D. Nevada
RICHARD A. TUALLI, Plaintiff(s),
EVERBANK, et al., Defendant(s).
before the court is Taulli's emergency application for a
temporary restraining order (TRO) and injunctive relief, (ECF
No. 12). Taulli's motion for a TRO requests this court to
stay a foreclosure sale. (ECF No. 12 at 6, 10-11). The motion
case involves an impending foreclosure sale, set for August
24, 2017, on Taulli's principal place of residence caused
by plaintiff's admitted delinquency in making his
mortgage payments. (ECF No. 1-2 at 6 ¶ 15) (Taulli
admitting in his complaint, “being unable to make his
required payment . . .”); (ECF No. 12 at 3) (Taulli
admitting the same in his motion for a TRO); see
also (ECF No. 1-2 at 31) (mortgage statement attached to
Taulli's complaint, showing $181, 200.28 overdue and a
notice stating, “According to our records your account
is delinquent.”). Taulli claims that the home subject
to the foreclosure and this action is his principal place of
residence, which he purchased under a note in the principal
amount of $897, 600. (ECF No. 12 at 2); (ECF No. 1-2 at
25, 2017, Taulli claims he received a notice of sale from
defendant Trustee Corps setting a foreclosure sale of
plaintiff's home for June 27, 2017. (ECF No. 12 at 3-4).
15, 2017, plaintiff Richard Taulli filed a complaint in
Nevada state district court against defendants EverBank,
Countrywide Mortgage, Oaktree Funding, and Trustee Corps,
bringing claims relating to the defendants' alleged
improper servicing and foreclosure on plaintiff's home
mortgage. (ECF No. 1-2 at 4-11). Taulli's complaint
contains four claims against defendants: (1) contractual
breach of the implied covenant of good faith and fair
dealing, (2) tortious breach of the implied covenant of good
faith and fair dealing, (3) declaratory judgment, and (4)
injunctive relief. (ECF No. 1-2 at 7-11).
foreclosure sale was reset to August 24, 2017. (ECF No. 12 at
Rule of Civil Procedure 65(b) allows a federal district court
to issue a temporary restraining order under the following
(1) Issuing Without Notice. The
court may issue a temporary restraining order without written
or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified
complaint 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
(B) the movant's attorney certifies in
writing any efforts made to give notice and the reasons why
it should not be required.
Fed. R. Civ. P. 65 (emphasis added).
motion for a TRO fails to comply with the threshold
requirement of providing an affidavit or verified complaint
setting forth the specific facts showing this court the need
for a TRO. The complaint is not verified. (See ECF
No. 1-2 at 4-11). There are no citations to evidence or an
affidavit anywhere in Taulli's “statement of
facts” supporting his TRO motion. (See ECF No.
12 at 2-6). Taulli's counsel signed a 4-sentence
“declaration in support of temporary order staying
foreclosure” that is woefully inadequate to constitute
a showing of “specific facts” that “clearly
show” that a TRO is warranted. See Fed. R.
Civ. P. 65; (ECF No. 12 at 10-11). Instead, Taulli's
counsel swore only:
1. That I am an attorney duly licensed to practice law in the
State of Nevada and represent the Plaintiff in this matter.
2. That this Application for Temporary Restraining Order and
Motion for Preliminary Injunction needs to be granted on an
3. That an Order Staying Foreclosure is justified in that
foreclosure proceeding[s] are currently scheduled for August
24, 2017 on the property, Defendant previously delayed the
foreclosure demonstrating that a delay in the foreclosure
causes Defendants minimal harm and such ...