United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States District Judge
On May
7, 2019, Plaintiff Judith V. Brown (“Brown”)
filed a complaint (Doc. 1) and request for temporary
restraining order (“TRO”) without notice (Doc. 2)
seeking to enjoin Defendants NEWREZ LLC and Bank of America
NA (collectively, “Defendants”) from conducting a
trustee's sale on her residential property at 6259
Horseshoe Road, Paradise Valley, Arizona. The complaint
alleges that Brown contacted Defendants for help negotiating
a loan modification on her property and then made payments to
Defendants totaling nearly $20, 000. (Doc. 1 ¶¶ 4,
7.) The complaint further alleges that none of these payments
has been applied to her loan or forwarded to her
“actual lender.” (Id. ¶ 8.) The
complaint also alleges that a trustee's sale is currently
scheduled for May 9, 2019. (Id. ¶ 10.) Finally,
in her accompanying TRO request, Brown argues that emergency
relief is appropriate because she should be allowed to
“stay in her home while her due process rights are
heard regarding the payments received by Defendants
purporting to be the servicer of her home loan.” (Doc.
2 at 2.)
A
request for a TRO is analyzed under the same standards as a
request for a preliminary injunction. Stuhlbarg Int'l
Sales Co., Inc. v. John D. Brush & Co., 240 F.3d
832, 839 n.7 (9th Cir. 2001). “A preliminary injunction
is ‘an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing,
carries the burden of persuasion.'” Lopez v.
Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (citation
omitted); see also Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 24 (2008) (“A preliminary
injunction is an extraordinary remedy never awarded as of
right.”) (citation omitted). A plaintiff seeking a
preliminary injunction must show that (1) she is likely to
succeed on the merits, (2) she is likely to suffer
irreparable harm without an injunction, (3) the balance of
equities tips in her favor, and (4) an injunction is in the
public interest. Winter, 555 U.S. at 20. “But
if a plaintiff can only show that there are ‘serious
questions going to the merits'-a lesser showing than
likelihood of success on the merits-then a preliminary
injunction may still issue if the ‘balance of hardships
tips sharply in the plaintiff's favor,' and the other
two Winter factors are satisfied.” Shell
Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291
(9th Cir. 2013) (citation omitted). Under this “serious
questions” variant of the Winter test,
“[t]he elements . . . must be balanced, so that a
stronger showing of one element may offset a weaker showing
of another.” Lopez, 680 F.3d at 1072.
Additionally,
when a plaintiff requests a TRO without notice, as
Brown does here, two additional requirements are applicable.
“The 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's attorney 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).
Brown's
request for a TRO without notice will be denied. First, Brown
has failed to demonstrate why the Court should proceed
without notifying Defendants. This isn't a case involving
allegations that Defendants will destroy evidence, or engage
in some other form of surreptitious misconduct, unless they
are first secretly enjoined from doing so. To the contrary,
Brown seeks to enjoin a public trustee's sale that has
been planned for some time. Moreover, and as discussed below,
Brown was recently engaged in state-court litigation with
Defendant NEWREZ LLC's predecessor involving the same
property. Notice of Brown's request for preliminary
injunction in that case didn't prompt the defendants to
engage in a clandestine sale of her property.
Second,
Brown hasn't demonstrated a likelihood of success on the
merits. Brown fails to mention, in either her complaint or
TRO request, that she filed a lawsuit in the Maricopa County
Superior Court (CV2018-010815) in August 2018 against various
defendants, including Bank of New York Mellon and New Penn
Financial LLC (now NEWREZ LLC), in an attempt to enjoin those
parties from conducting a trustee's sale on the same
property at issue in this case.[1] In October 2018, the judge in the
state-court proceeding issued a lengthy order concluding
Brown wasn't entitled to a preliminary injunction because
she hadn't established a likelihood of
success.[2] Specifically, the court found that
“[a]ll of Plaintiff's claims for relief appear to
be based upon the argument that somehow, despite not making
any payments on her mortgage since 2012, and eight years into
a 30-year mortgage, she is now absolved from making any
future payments and may continue to retain possession of her
residence.” Finally, in April 2019, the court appears
to have issued an order granting defendants' motion to
dismiss Brown's complaint.[3]
Brown's
failure to disclose this proceeding creates serious doubts
regarding the merit of her claims. It also raises the
possibility, if not likelihood, that the claims she wishes to
raise in this case-which deal, in part, with payments Brown
claims to have remitted to Defendants in September 2018 (Doc.
1-1 at 23), which is before she filed her request for a
preliminary injunction in the state-court case-are barred by
principles of res judicata. See generally Olivas-Motta v.
Whitaker, 910 F.3d 1271, 1279 (9th Cir. 2018)
(“Under the doctrine of claim preclusion, a final
judgment forecloses ‘successive litigation of the very
same claim, whether or not relitigation of the claim raises
the same issues as the earlier suit.'”) (citation
omitted); Cell Therapeutics, Inc. v. Lash Grp.,
Inc., 586 F.3d 1204, 1212 (9th Cir. 2009) (“Claim
preclusion, often referred to as res judicata, bars any
subsequent suit on claims that were raised or could have been
raised in a prior action.”).
Accordingly,
IT IS ORDERED that Brown's request for
TRO without notice (Doc. 2) is denied.
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Notes:
[1] The docket is available at
http://www.superiorcourt.maricopa.gov/docket/
CivilCourtCases/caseInfo.asp?caseNumber=CV2018-010815.
[2] The minute entry is available at
http://www.courtminutes.maricopa.gov/
viewerME.asp?fn=Civil/102018/m8482528.pdf.
[3] The online docket states that, on
April 2, 2019, the court issued an order “GRANTING
MOTION TO DISMISS FILED BY SHELLPOINT BNYM AND MERS.”
“Shellpoint” is shorthand for “Shellpoint
Mortgage Servicing, ” ...