United States District Court, D. Nevada
CHARLES R. KOZAK AND SUSAN K. KOZAK, Plaintiffs,
SELECT PORTFOLIO SERVICING, INC.; QUALITY LOANS SERVICE CORP.; AMERICAN HOME MORTGAGE ACCEPTANCE, INC.; EMC MORTGAGE CORP.; STRUCTURED ASSET MORTGAGE INVESTMENTS II, INC.; CITIBANK, NA AS TRUSTEE FOR SECURITIZED TRUST STRUCTURED ASSET MORTGAGE INVESTMENTS II 2007-AR6 TRUST; WELLS FARGO BANK, NA; MORTGAGE ELECTRONIC REGISTRATION SYSTEM “MERS”; AND DOES 1 THROUGH 100 INCLUSIVE, . Defendants.
ORDER (PLS.' MOTION FOR PRELIMINARY INJUNCTION -
ECF NO. 13; PLS.' MOTION FOR TEMPORARY RESTRAINING ORDER
- ECF NO. 14)
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court are Plaintiffs' verified application for
temporary restraining order, preliminary injunction, and
declaratory relief (“TRO Application”) (ECF No.
14) and Plaintiffs' motion for preliminary injunction
(ECF No. 13) (together, “Motions”).
TRO Application essentially asks for emergency ex parte
relief without complying with the requirements for emergency
relief under LR 7-4. For example, Plaintiffs fail to certify
that any attempt to meet and confer has been made or why the
nature of the emergency precluded such a conference. LR
Plaintiffs have failed to explain why they waited until three
business days before the sale to seek an emergency temporary
restraining order on an ex parte basis when they knew that a
foreclosure was scheduled on October 23, 2017, at least as
early as October 6, 2017, when Plaintiffs filed their
Complaint for, inter alia, “lack of standing
to foreclose.” (ECF No. 1 at 1.) “Emergency
motions should be rare. A party or attorney's failure to
effectively manage deadlines . . . does not constitute an
emergency.” LR 7-4(b).
these reasons, the Court denies Plaintiffs' request to
address its motion on an emergency basis. The Court also
declines to set a shortened briefing schedule since the
foreclosure sale will take place in the next few days.
Court has also preliminarily reviewed the substance of
Plaintiffs' TRO Application and is not persuaded that
Plaintiffs can demonstrate a likelihood of success on the
merits. TROs are governed by the same standard applicable to
preliminary injunctions. Cal. Indep. Sys. Operator Corp.
v. Reliant Energy Servs., Inc., 181 F.Supp.2d 1111, 1126
(E.D. Cal. 2001). A TRO may be issued if a plaintiff
establishes: (1) likelihood of success on the merits; (2)
likelihood of irreparable harm in the absence of preliminary
relief; (3) that the balance of equities tips in his favor;
and (4) that an injunction is in the public interest.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). The Ninth Circuit has also held that
“‘serious questions going to the merits' and
a hardship balance that tips sharply toward the plaintiff can
support issuance of an injunction, assuming the other two
elements of the Winter test are also met.”
All. for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1132 (9th Cir. 2011).
extent that Plaintiffs base their causes of action on
theories of improper securitization and assignment (see,
e.g., ECF No. 1 at 8-9), this district as well as the
Ninth Circuit has repeatedly rejected these theories. See
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d
1034, 1044 (9th Cir. 2011) (finding that plaintiffs failed to
state a claim for wrongful foreclosure when interests in home
loans were transferred within the MERS system despite
arguments that “the designation of MERS as a
beneficiary is a sham and the system splits the deed from the
note”); see also Beebe v. Fed. Nat'l Mortg.
Ass'n, No. 2:13-cv-311 -JCM-GWF, 2013 WL 3109787, at
*2 (D. Nev. June 18, 2013) (“The securitization
argument has been repeatedly rejected by this district
because it does not alter or change the legal
beneficiary's standing to enforce the deed of
trust.”); see also Reyes v. GMAC Mortg. LLC,
No. 2:11-cv-00100-JCM-RJJ, 2011 WL 1322775, at *3 (D. Nev.
Apr. 5, 2011) (“Since the securitization ‘merely
creates a separate contract, distinct from plaintiffs'
debt obligations' under the note and does not change the
relationship of the parties in any way, plaintiffs'
claims arising out of securitization fail.”) (quoting
Commonwealth Prop. Advocates, LLC v. First Horizon Home
Loan Corp ., No. 2:10-cv-375, 2010 WL 4788209, at *4 (D.
Utah Nov. 16, 2010)); see also Wood v. Germann, 331
P.3d 859, 861 (Nev. 2014) (holding that homeowner lacked
standing to challenge the validity of loan assignments that
violated the terms of the original lender and subsequent
purchaser's pooling and servicing agreement).
many of Plaintiffs purported causes of action are not
affirmative legal claims. Some are merely forms of relief
(see, e.g., ECF No. 1 at 21-22 (requesting
injunctive relief)), and others amount to prudential,
non-legal allegations (see, e.g., Id. at 26-27
(alleging “elder abuse”)).
therefore ordered that Plaintiff's request for the Court
to consider the Motions on an emergency basis and ex parte is