United States District Court, D. Nevada
M. NAVARRO, DISTRICT JUDGE.
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
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).
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Rescission (“First Rescission”), which rescinded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).
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 Like BOA, Nationstar rescinded the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).
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).
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).
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.”
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).
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
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
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 ...