United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT
before the Court is the Motion for Temporary Restraining
Order and Permanent Injunction, (ECF Nos. 3, 4), filed by
Ruben Corona and Ana Corona (“Plaintiffs”).
Defendants Bayview Loan Servicing, LLC, Robert Hodapp, Zieve,
Brodnax, and Steele, LLP, and Shadd A. Wade (collectively,
“Defendants”) filed a Response, (ECF No. 9), and
Plaintiffs did not file a Reply. Also pending before the
Court are Plaintiffs' Motions to Strike Pleadings, (ECF
Nos. 16, 17). Defendants filed a Response, (ECF No. 20), and
Plaintiffs did not file a Reply. For the reasons stated
below, the Court DENIES Plaintiffs'
Motion for Temporary Restraining Order, and
DENIES Plaintiffs' Motion to Strike
case concerns a non-judicial foreclosure on Plaintiffs'
real property located at 7312 Buttons Ridge Drive, Las Vegas,
Nevada 89131 (the “Property”). (Compl. at 1, ECF
No. 1). Plaintiffs purchased the Property through a loan of
$799, 999.00 from Southstar Funding LLC and Star Mortgage.
(Id. at 5). After taking out the loan, however,
Plaintiffs allege that Defendants did not properly register
the loan documents. (Id. at 5-7, 9). That improper
loan registration caused Plaintiffs to make payments on a
“fake loan.” (Id. at 3). Upon
Plaintiffs' apparent failure to meet payment obligations
on that fake loan, Defendants commenced a foreclosure lawsuit
in a state court. (Id. at 6, 13). According to
Plaintiffs, the improper registration of loan documents meant
that the foreclosure proceedings in the state court occurred
without proper authority, without verification of any debt,
and without the proper parties to enforce the loan.
(Id. at 3-4, 12).
accordingly filed their Complaint with the Court on February
26, 2019, alleging the following causes of action: (1) breach
of contract; (2) scheme to defraud in violation of “the
Truth in Lending Act, Regulation Z, 12 CFR §
226.23”; (3) detrimental reliance; (4) unlawful
deception; (5) civil violation of the Racketeer Influenced
and Corrupt Organization Act; (6) wrongful foreclosure; (7)
slander of title; (8) violation of the Consumer Protection
Act; (9) slander of credit; and (10) infliction of emotional
distress. (Id. at 5-11). Shortly afterward,
Plaintiffs filed the instant Motion for Temporary Restraining
Order and Permanent Injunction, (ECF Nos. 3, 4). Plaintiffs
filed that Motion prior to serving Defendants with the
Complaint and without notifying Defendants or providing
justification for an ex parte injunction pursuant to
Federal Rule of Civil Procedure 65(b). The Court thus
required Plaintiffs to notify the opposing parties of the
Motion for Temporary Restraining Order, and thereafter set a
briefing schedule. (See Min. Order, ECF No. 6).
injunctions and temporary restraining orders are governed by
Rule 65 of the Federal Rules of Civil Procedure, which
provides that a “court may issue a preliminary
injunction only on notice to the adverse party.”
Fed.R.Civ.P. 65(a)(1). A “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 certifies in writing any
efforts made to give notice and the reasons why it should not
be required.” Fed.R.Civ.P. 65(b)(1). A temporary
restraining order “should be restricted to serving
[its] underlying purpose of preserving the status quo and
preventing irreparable harm just so long as is necessary to
hold a hearing, and no longer.” Granny Goose Foods,
Inc. v. Bhd. of Teamsters Local No. 70, 415 U.S. 423,
439 (1974). In general, injunctive relief is an extraordinary
remedy that is awarded only upon a clear showing that the
moving party is entitled to that relief. Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.”
Id. at 20. In certain circumstances,
“‘serious questions going to the merits' and
a balance of hardships that tips sharply towards the
plaintiff can support issuance of a preliminary injunction,
so long as the plaintiff 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, 1134 (9th Cir.
2011). “[C]ourts must balance the competing claims of
injury and must consider the effect on each party of the
granting or withholding of the requested relief.”
Amoco Production Co. v. Village of Gambell, AK, 480
U.S. 531, 542 (1987).
Motion for Temporary Restraining Order
move for a temporary restraining order and permanent
injunction to halt the Property's foreclosure sale and
related eviction proceedings. (Mot. TRO at 11, ECF No. 3, 4).
At the outset, the Court notes Plaintiffs' pro
se status. The Court therefore liberally construes
Plaintiffs' filings, but holds them to the same
procedural rules for all parties. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007); see Ghazali v.
Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“Although
we construe pleadings liberally in their favor, pro se
litigants are bound by the rules of procedure.”).
Likelihood of Imminent, Irreparable Injury
argue that the there is a likelihood of imminent, irreparable
injury to them based on the loss of their Property due to the
foreclosure sale and upcoming eviction. (Mot. TRO at 1-2). As
properly noted by Defendants, however, the at-issue
foreclosure sale occurred before Plaintiffs filed their
Complaint. (See Assignment of Deed of Trust, Ex. F
to Defs.' Resp., ECF No. 9-6); (Notice of Default and
Election to Sell, Ex. G. to Defs.' Resp., ECF No. 9-7);
(Notice of Trustee's Sale, Ex. I to Defs.' Resp., ECF
No. 9-9) (showing a sale of Plaintiffs' Property set for
August 3, 2018); (Trustee's Deed Upon Sale, Ex. J. to
Defs.' Resp., ECF No. 9-10) (listing the Property's
sale by public action on October 3, 2018); (see also
Mot. TRO at 1, 8, ECF No. 3); (Compl. at 13, ECF No. 1)
(claiming a foreclosure sale process as of February 8, 2019,
but the Complaint being filed on February 26, 2019). The
Court therefore finds that Plaintiffs' request to enjoin
the foreclosure sale is moot and cannot provide a basis for
irreparable injury. See Hakimi v. Bank of New York
Mellon, No. 2:14-cv-2215-JCM-CWH, 2015 WL 376465, at *2
(D. Nev. Jan. 28, 2015) (denying as moot a plaintiff's
request to enjoin a foreclosure sale after the property had
already been sold).
while an upcoming eviction is typically an imminent,
irreparable injury that can support a preliminary injunction,
Park Vill. Apartment Tenants Ass'n v. Mortimer Howard
Tr., 636 F.3d 1150, 1159 (9th Cir. 2011), the party
requesting the injunction must seek to enjoin the party
causing the complained-of harm. Cf. Creek Project All.
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135
(9th Cir. 2011). Here, neither the motion for temporary
restraining order nor the Complaint identify a named
defendant as the one performing or seeking the eviction.
Instead, Plaintiffs broadly seek to enjoin “the Banks,
attorneys, the realtors, and the Property Management
Companies.” (Mot. TRO at 1, ECF No. 3). Because it ...