United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
before the Court is Plaintiffs Gary Lowry and Marian
Carol's Motion and Request for Emergency TRO and
Preliminary Injunction, (Doc. 12). For the following reasons,
the motion is denied and the case is terminated.
action arises from Defendant JPMorgan Chase &
Company's (“Chase”) stated intention to
foreclose upon the Plaintiffs property on December 19, 2016.
(Doc. 12 at 2.) Plaintiffs bought the property at 2900 S.
Blue Ranch Road, Cottonwood, Arizona in November of 2004
through a mortgage secured by the income produced by their
ministry, Western Spirit Enrichment Center (“Western
Spirit”). (Doc. 12 at 3.) This mortgage was later
refinanced in April 2006 with Encore Credit Corporation, and
then sold to EMC Mortgage Corporation (“EMC”).
(Doc. 12 at 3.) In December 2010, Plaintiffs applied for a
loan modification with EMC. (Id.) On April 1, 2011,
Chase acquired all of EMC's assets in a de facto
merger. (Id.) Plaintiffs received a “Statement
of Ineligibility” letter from Chase later that month
informing them that their application was denied.
(Id.) It is unclear at what point Lowry and Carol
stopped making their mortgage payment on the property, but
Chase recorded a notice of sale at the Yavapai County
Recorder's Office on September 8, stating its intent to
foreclose on the property on December 19, 2016. (Id.
at 2, 10.) Plaintiffs filed this motion for emergency relief
on December 9.
Plaintiffs Fail to Satisfy the Requirements for Preliminary
Plaintiffs failed to comply with the requirements of Rule 65,
and thus they may not obtain a temporary restraining order
without notice. To obtain a temporary restraining order
without notice, a plaintiff must allege facts that indicate
an immediate and irreparable injury “before the adverse
party can be heard in opposition” and (2) certify
“in writing any efforts made to give notice and the
reasons why it should not be required.” Fed.R.Civ.P.
65. While the Plaintiffs assert an irreparable injury (the
loss of their property), they do not indicate why a hearing
must occur before the adverse party can be heard, or detail
any efforts they have made to give notice to the opposing
party. (See Doc. 12.) Therefore, the Plaintiffs
cannot obtain a temporary restraining order without notice.
Plaintiffs also fail to satisfy the four prong analysis for
obtaining a preliminary injunction or temporary restraining
order under Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008). To obtain either a temporary
restraining order or a preliminary injunction, a plaintiff
must satisfy four elements, including “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.” Winter,
555 U.S. at 22; see L.A. Unified Sch. Dist. v. U.S. Dist.
Court, 650 F.2d 1004, 1008 (9th Cir. 1981)
(“Because TROs are not normally appealable, case law
does not detail the standards to be applied on review.
However, guidance may be gleaned from cases considering the
propriety of preliminary injunctions.”). While the
imminent foreclosure on their property is evidence of
irreparable harm, none of the facts alleged indicate that
Plaintiffs are likely to succeed on the merits. The Complaint
asserts that Plaintiffs are ministers of their church, but it
does not allege any facts that indicate that Chase refused to
grant them a loan modification due to their religion. Rather,
Plaintiffs concede that they have not paid their mortgage for
some time now, and thus they fail to meet their burden that
it is likely that the foreclosure action is due to religious
discrimination rather than non-payment. (Doc. 12 at 10.)
Furthermore, Plaintiffs cannot demonstrate that the balance
of equities tip in their favor, particularly considering that
they have had multiple attempts to argue the merits of this
action in federal court, and they have been denied every
time. See Lowry v. JPMorgan Chase Bank NA, et al.,
No. CV-11-08177-PCT-JAT, slip op. at 2 (D. Ariz. Dec. 1,
2016). The facts alleged in the Plaintiffs' motion are
insufficient to indicate that any public interest served in
issuing the injunction, if at all, could possibly overcome
the other two factors weighing against the issuance of an
Plaintiffs' Claims Before this Court are Duplicative of
Their Other Causes of Action
come to this Court's attention that the Plaintiffs in
this case have filed numerous actions against Defendants
JPMorgan Chase (“Chase”) and EMC dealing with this
foreclosure, including one before Judge Teilborg of this
Court. See Lowry v. JPMorgan Chase Bank NA, et al.,
No. CV-11-08177-PCT-JAT (D. Ariz. Dec. 1, 2016). That case is
currently before the Ninth Circuit on appeal following Judge
Teilborg's dismissal of the Plaintiffs' claims.
generally have no right to maintain two separate actions
involving the same subject matter at the same time in the
same court and against the same defendants.” Adams
v. Cal. Dep't of Health Servs., 487 F.3d 684, 688
(9th Cir. 2007) (internal quotation and citation omitted),
overruled on other grounds by Taylor v. Sturgell,
553 U.S. 880, 904 (2008). The question of whether causes of
action can be considered the same, and thus duplicative of
each other, “depends on whether they are related to the
same set of facts and whether they could conveniently be
tried together.” Id. at 689 (quoting
Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th
Plaintiffs filed an action alleging several violations of
state and federal law against Chase and EMC in 2011,
including claims based on religious discrimination. See
Lowry v. EMC Mortg. Corp., No. CV 11-8177-PCT-JAT, 2012
WL 3257652, at *7 (D. Ariz. Aug. 8, 2012) (dismissing
Plaintiffs claims against Chase and EMC because
“Plaintiffs fail to plead any facts supporting an
inference that they were denied a loan modification based on
their religion.”). The Plaintiffs amended their claims
and re-filed, and the claims were once more dismissed because
“[a]lthough Plaintiffs repeatedly allege that the
failure to use the income of Western Spirit in determining
Plaintiffs' qualification for a loan modification was
illegal and fraudulent, they fail to cite to any provision of
a contract or any other law that would place such a
requirement on Defendants.” Lowry v. EMC Mortg.
Corp., No. CV-11-08177-PCT-JAT, 2013 WL 841326, at *3
(D. Ariz. Mar. 6, 2013). The Plaintiffs were subsequently
denied further leave to amend their complaint after it was
determined that further amendment would be futile, and they
have since appealed the dismissal of their claims.
Id. at *5; Lowry v. JPMorgan Chase Bank NA, et
al., No. CV-11-08177-PCT-JAT, slip op. at 1 (D. Ariz.
Dec. 1, 2016).
the Ninth Circuit as well as Judge Teilborg recently denied
requests for emergency injunctive relief from the Plaintiffs
that were largely identical to the request currently before
this Court. See Lowry v. JPMorgan Chase Bank NA, et
al., No. CV-11-08177-PCT-JAT (D. Ariz. Dec. 1, 2016). In
light of this as well as the facts stated above, this Court
finds that the current causes of action before the Court are
duplicative of the Plaintiffs' other claims, and
therefore the Plaintiffs' claims before this Court are
THEREFORE ORDERED that the Plaintiffs' Motion and Request
for Emergency TRO and Preliminary ...