United States District Court, D. Nevada
ORDER PLAINTIFF'S EMERGENCY MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION (ECF NO.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
Emergency Motion for Temporary Restraining Order and
Preliminary Before the Court is Plaintiff's Emergency
Motion for Temporary Restraining Order and Preliminary
Injunction. ECF No. 5. For the reasons stated below, the
Court DENIES Plaintiff's Motion.
Court also GRANTS, for the reasons stated in the motion and
because it is unopposed, the Motion to Intervene [ECF No. 6].
Court makes the following factual findings. Plaintiff
purchased the property at issue in a foreclosure sale on
November 17, 2016. Defendant is the beneficiary of the deed
of trust. Defendant executed a Notice of Default and Election
to Sell Under Deed of Trust on December 13, 2017. The Notice
of Default states that the original owner of the property
defaulted on July 1, 2012. The foreclosure sale is scheduled
for June 1, 2018 and was noticed in the public record on May
10, 2018. In order to comply with a request made under NRS
107.200, Defendant sent Plaintiff on March 2, 2018 a
Reinstatement Quote and a Payoff Quote regarding the debt
secured by the Deed of Trust. These Quotes stated that they
expired on March 12, 2018, after which time Plaintiff would
have to request the information again. Plaintiff did not make
an additional request for a disclosure under NRS 107.200 or
request an updated clarification of the earlier Quotes.
filed a Complaint in state court on May 22, 2018 and an Ex
Parte Motion for Temporary Restraining Order on May 23, 2018.
ECF No. 1-1. Defendant removed the case to federal court on
May 25, 2018. ECF No. 1. Defendant filed a Response to Ex
Parte Motion for Temporary Restraining Order on May 26, 2018.
ECF No. 4. Plaintiff filed the instant Emergency Motion for
Temporary Restraining Order and Preliminary Injunction on May
29, 2018. ECF No. 5. Defendant responded on May 30, 2018. ECF
No. 8. Plaintiff's Complaint and motions allege that
Defendant failed to fully comply with the requirements of NRS
107.200. Plaintiff asks the Court to enjoin Defendant from
proceeding with the foreclosure sale until it has provided
Plaintiff pursuant to the Complaint with the additional
information requested regarding payments owed under the Deed
temporary restraining order may be issued without notice to
the adverse party only if the moving party: (1) provides a
sworn statement clearly demonstrating “that immediate
and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition,
” and (2) sets forth the efforts made to notify the
opposing party and why notice should not be required.
Fed.R.Civ.P. 65(b)(1). TROs issued without notice “are
no doubt necessary in certain circumstances, but under
federal law they should be restricted to serving their
underlying purpose of preserving the status quo and
preventing irreparable harm just so long as is necessary to
hold a hearing, and no longer.” Reno Air Racing
Ass'n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006)
(quoting Granny Goose Foods, Inc. v. Bhd. of
Teamsters, 415 U.S. 423, 439 (1974)). The analysis for a
temporary restraining order is “substantially
identical” to that of a preliminary injunction.
Stuhlbarg Intern. Sales Co, Inc. v. John D. Brush &
Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). To
obtain a preliminary injunction, a plaintiff must establish
four elements: “(1) a likelihood of success on the
merits, (2) that the plaintiff will likely suffer irreparable
harm in the absence of preliminary relief, (3) that the
balance of equities tips in its favor, and (4) that the
public interest favors an injunction.” Wells Fargo
& Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d
1069, 1071 (9th Cir. 2014), as amended (Mar. 11,
2014) (citing Winter, 555 U.S. 7, 20 (2008)). A
preliminary injunction may also issue under the
“serious questions” test. Alliance for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir.
2011) (affirming the continued viability of this doctrine
post-Winter). According to this test, a plaintiff
can obtain a preliminary injunction by demonstrating
“that serious questions going to the merits were raised
and the balance of hardships tips sharply in the
plaintiff's favor, ” in addition to the other
Winter elements. Id. at 1134-35 (citation
Court will treat this Motion as a Motion for Preliminary
Injunction, as the Plaintiff filed a substantially similar Ex
Parte Motion for Temporary Restraining Order in state court.
ECF No. 1, Ex. 1. Defendant removed this case from state to
federal court and filed a Response to Ex Parte Motion for
Temporary Restraining Order on May 26, 2018. ECF Nos. 1, 4.
The Defendant also filed a response to the Emergency Motion
on May 30, 2018. ECF No. 8. As Defendant has already
responded to Plaintiff's allegations (twice), the Court
does not find the Rule 65(b)(1) requirements for issuing a
temporary restraining order without notice to the adverse
party to be necessary in this case.
Likelihood of Success on the Merits
Court finds that Plaintiff has not satisfied the requirements
for a preliminary injunction, however. Plaintiff has not
established a likelihood of success on the merits. Plaintiff
argues that Defendant failed to satisfy the requirements of
NRS 107.200. That statute requires that when requested, the
beneficiary of a deed of trust must provide a statement
within 21 days that contains certain information regarding
the debt secured by the deed of trust, including “[t]he
amount of the periodic payments, if any, required under the
note.” NRS 107.200. Although it acknowledges that
Defendant sent it a statement summarizing the debt secured by
the deed of trust, Plaintiff claims that it is entitled to
receive a more detailed breakdown of the periodic payment
calculation and an accounting and payment history for the
property, so that it can verify the information provided by
Defendant. None of this background information is required
under the plain language of the statute, however, and
Plaintiff has not pointed to any case law interpreting the
statute to require more detailed information or a means for
the debtor to verify the information provided by the
beneficiary of the deed of trust. The Plaintiff has also
provided no information that would establish or question the
accuracy of the calculations of the Defendant in the Quotes.
the Plaintiff's argument that the Defendant did not
provide information about the periodic payments also fails.
The Reinstatement Quote actually details the amount of the
payments ($1, 015.75) and the number of payments (69)
included in the Quote. Thus, the Defendant did provide this
information as required and all of the information required
under NRS 107.200. The Plaintiff cannot therefore establish a