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Valin v. Nationstar Mortgage LLC

United States District Court, D. Nevada

November 4, 2019

PAMELA VALIN; JAMES VALIN, Plaintiffs,
v.
NATIONSTAR MORTGAGE, LLC, et al.,

          ORDER

          GLORIA M. NAVARRO, DISTRICT JUDGE.

         Pending before the Court is the Motion for Temporary Restraining Order and Preliminary Injunction, (ECF Nos. 7, 8), filed by Plaintiffs Pamela Valin and James Valin (“Plaintiffs”). Defendants Nationstar Mortgage LLC and U.S. Bank National Association (as Trustee Successor in Interest to Wachovia Bank, National Association, as Trustee for GSR Mortgage Loan Trust 2004-11, Mortgage Pass-Through Certificates, Series 2004-11) (collectively “Defendants”) filed a Response, (ECF No. 11); and Plaintiffs filed a Reply, (ECF No. 12). For the reasons discussed below, the Court DENIES Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction.[1]

         I. BACKGROUND

         This case arises from Plaintiffs' payment obligations for a loan to purchase real property (the “Mortgage”) located at 16 Via Ravello, Henderson, Nevada 89011 (the “Property”). (First Am. Compl. (“FAC') ¶¶ 7-8, ECF No. 1-1). Plaintiffs received the Mortgage from Central Pacific Mortgage Company, who secured the Mortgage against the Property by recording a Deed of Trust. (Id. ¶ 9). Countrywide Mortgage later purchased the Mortgage; and Bank of America (“BOA”) purchased Countrywide Mortgage. (Id. ¶ 10).

         According to the First Amended Complaint, Plaintiffs last made a payment for the Mortgage on May 1, 2009, which BOA deemed late on June 1, 2009. (Id. ¶¶ 11-12). BOA consequently recorded a Notice of Default and Election to Sell the Property on September 8, 2009 (“First Notice of Default”). The First Notice of Default declared that it accelerated the full, outstanding amount still owed for the Mortgage. (First Not. Default, Ex. 4 to Mot. TRO, ECF No. 7-1). However, on March 25, 2010, BOA recorded a Notice of Rescission (“First Rescission”), which rescinded the First Notice of Default. (First Rescission at 51 of 59, Ex. 8 to Mot. TRO, ECF No. 7-1).

         In 2013, BOA substituted its role as servicer of Plaintiffs' Mortgage with Nationstar. (FAC ¶ 16). Because Plaintiffs were still delinquent on their Mortgage payments, Nationstar recorded a Notice of Default and Election to Sell the Property on March 16, 2016 (“Second Notice of Default”), which again accelerated the outstanding amount owed with the Mortgage. (Sec. Not. Default, Ex. 5 to Mot. TRO, ECF No. 7-1). Like BOA, Nationstar rescinded the Second Notice of Default with a Notice of Rescission recorded twice: on November 17, 2016, and January 9, 2017 (“Second Rescission”). (Sec. Rescission at 53 of 59, Ex. 8 to Mot. TRO, ECF No. 7-1); (Sec. Rescission, Ex. I to Resp., ECF No. 11-9). Yet, on January 9, 2017, Nationstar recorded another Notice of Default and Election to Sell the Property (“Third Notice of Default”); and this Third Notice of Default has not been rescinded. (Third Not. Default, Ex. 6 to Mot. TRO, ECF No. 7-1).

         On October 3, 2019, Plaintiffs filed a Complaint against Defendants in the District Court for Clark County, Nevada, asserting three causes of action: (1) quiet title; (2) declaratory judgment; and (3) injunctive relief. (Compl. ¶¶ 25-42, ECF No. 1-1). Plaintiff amended that Complaint on October 9, 2019, though still asserting the same three causes of action as the original. (First Am. Compl. (“FAC'), ECF No. 1-1). On October 11, 2019, Plaintiffs filed an Ex Parte Motion for Temporary Restraining Order and Preliminary Injunction with the Clark County Court to enjoin a foreclosure sale on the Property scheduled for October 22, 2019 (a sale authorized by the Third Notice of Default). (Ex Parte Mot. TRO, ECF No. 1-1). Three days after Plaintiffs filed their Ex Parte Motion, Defendants removed the case to this Court and thereby negated the restraining order and injunction process in the Clark County Court. (Pet. Removal, ECF No. 1); (Decl. Erik W. Fox ¶¶ 5, 7, Mot. TRO, ECF No. 7).

         On October 15, 2019, Plaintiffs re-filed their Motion for Temporary Restraining Order and Preliminary Injunction with this Court, and the Court set an expedited briefing schedule. (Min. Order, ECF No. 9). In their Reply filed on October 21, 2019, Plaintiffs advise the Court of the foreclosure sale's continuance to November 26, 2019. (Reply 2:12-13, ECF No. 12).

         II.LEGAL STANDARD

         Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders, and requires that a motion for temporary restraining order include “specific facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition, ” as well as written certification from the movant's attorney stating “any efforts made to give notice and the reasons why it should not be required.” Fed.R.Civ.P. 65(b).

         Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181 F.Supp.2d 1111, 1126 (E.D. Cal. 2001). Furthermore, 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 & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974).

         A preliminary injunction 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. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22.

         The Ninth Circuit has 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.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).

         “In deciding a motion for a preliminary injunction, the district court ‘is not bound to decide doubtful and difficult questions of law or disputed questions of fact.'” Int'l. Molders' & Allied Workers' Local Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir. 1986) (quoting Dymo Indus., Inc. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964)). “The urgency of obtaining a preliminary injunction necessitates a prompt determination and makes it difficult to obtain affidavits from persons who would be competent to testify at trial. The trial court may give even inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable harm before ...


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