United States District Court, D. Nevada
before the court is defendant Saticoy Bay LLC Series 8829
Cornwall Glen's (“Saticoy”) “emergency
motion for preliminary injunction.” (ECF No. 10).
August 25, 2004, Doreen Stewart purchased property commonly
known as 8829 Cornwall Glen Ave. (“the
property”). (ECF No. 1). The property was encumbered by
a deed of trust. Countrywide Home Loans was the trustee, and
Mortgage Electronic Registration Systems (“MERS”)
was the beneficiary. (Id.). The property is subject
to Covenants, Conditions, and Restrictions in favor of
American West Village II Owners Association (“the
allege that “[i]n September 2004, Federal National
Mortgage Association (“Fannie Mae”) acquired
ownership of the Note and Deed of Trust.”
(Id.). On January 8, 2016, MERS assigned its
beneficial interest in the deed of trust to Ditech Financial
LLC (“Ditech”). (Id.). Plaintiffs allege
that Ditech was the servicer of the loan for Fannie Mae at
the time. (Id.).
February 16, 2016, Nevada Association Services, Inc.
(“NAS”) recorded a notice of delinquent
assessment lien against the property on behalf of the HOA.
(ECF No. 1-2). On April 6, 2016, NAS recorded a notice of
default and election to sell on behalf of the HOA.
(Id.) On April 12, 2017, NAS recorded a notice of
foreclosure sale on behalf of the HOA. (Id.)
9, 2017, the HOA conducted a non-judicial foreclosure sale,
at which Saticoy was the successful bidder. (ECF No. 1). On
May 18, 2017, a certificate of foreclosure sale subject to
redemption was recorded, listing Saticoy as the purchaser at
the HOA foreclosure sale. (ECF No. 1-3). On July 11, 2017,
NAS issued a foreclosure deed in favor of Saticoy.
(Id.). Saticoy alleges in its motion for injunctive
relief that the deed was recorded on July 17,
seeks to enjoin plaintiffs Ditech and Fannie Mae from
proceeding with a foreclosure sale of the property.
Plaintiffs' foreclosure sale is currently set for August
injunction is a matter of equitable discretion . . . an
extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.
Id. at 22. 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, 129
S.Ct. 365, 374 (2008). The test is conjunctive, meaning the
party seeking the injunction must satisfy each element.
However, “‘serious questions going to the
merits' and a balance of hardships that tips sharply
towards the [movant] can support issuance of a preliminary
injunction, so long as the [movant] also shows that there is
a likelihood of irreparable injury and that the injunction is
in the public interest.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)
(citing Winter, 129 S.Ct. at 392).
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, a court may issue a temporary
restraining order only 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(b). Further, the movant's attorney
must certify in writing efforts made to give notice and
reasons why it should not be required. Id.
Saticoy's motion is titled a motion for a preliminary
injunction. However, the requested relief is an ex parte
order enjoining plaintiffs from conducting a foreclosure
sale. Thus, the court considers Saticoy's motion to be a
motion for a temporary restraining order under F.R.C.P.
65(b). See LR 2-2(b) (“For each type of relief
requested or purpose of the document, a separate document
must be file and a separate event must be selected for that
motion satisfies the elements for granting a temporary
restraining order. If the motion is not granted, Saticoy will
be subjected to immediate and irreparable harm that far
outweighs any potential harm suffered by plaintiffs.
Saticoy's motion also demonstrates a reasonable
likelihood of success on the merits and that the public
interest favors the granting of a temporary restraining
order. Further, Saticoy's affidavit satisfies F.R.C.P.
65(b)(1)(B), as it states efforts to give notice to
plaintiffs and the reasons why notice should not be required
on these facts.
will suffer irreparable harm if the court does not grant its
motion for a temporary restraining order before
plaintiffs' opposition to injunctive relief can be heard.
If the court does not grant the motion before August 24,
2017, plaintiffs will presumably proceed with the foreclosure
sale. Any purchaser at plaintiffs' sale will attempt to
assert title free-and-clear of Saticoy's interest in the
property. A temporary restraining order would prevent
irreparable harm by preserving ...