SFR Investments Pool 1, LLC v. PHH Mortgage Corporation

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 SFR INVESTMENTS POOL 1, LLC, Case No. 2:22-cv-00507-RFB-EJY 8 Plaintiff, ORDER 9 v. 10 PHH MORTGAGE CORPORATION; DOES I through X; ROE BUSINESS ENTITIES I 11 through X, inclusive, 12 Defendants. 13 Before the court is Plaintiff SFR Investments Pool 1, LLC’s (“SFR”) motion for a 14 temporary restraining order. ECF No. 5. The motion is supported by a memorandum of points and 15 authorities, the declarations of Karen L. Hanks, Esq., and various exhibits. This case was removed 16 from District Court, Clark County, Nevada by Defendants PPH on March 22, 2022. ECF No. 1. 17 A temporary restraining order may be issued without notice to the adverse party only if the 18 moving party: (1) provides a sworn statement clearly demonstrating “that immediate and 19 irreparable injury, loss, or damage will result to the movant before the adverse party can be heard 20 in opposition,” and (2) sets forth the efforts made to notify the opposing party and why notice 21 should not be required. Fed. R. Civ. P. 65(b)(1). TROs issued without notice “are no doubt 22 necessary in certain circumstances, but under federal law they should be restricted to serving their 23 underlying purpose of preserving the status quo and preventing irreparable harm just so long as is 24 necessary to hold a hearing, and no longer.” Reno Air Racing Ass’n v. McCord, 452 F.3d 1126 , 25 1131 (9th Cir. 2006) (quoting Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423 , 439 26 (1974)). The analysis for a temporary restraining order is “substantially identical” to that of a 27 preliminary injunction. Stuhlbarg Intern. Sales Co, Inc. v. John D. Brush & Co., Inc., 240 F.3d 28 832 , 839 n.7 (9th Cir. 2001). To obtain a preliminary injunction, a plaintiff must establish four 1 elements: “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer 2 irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its 3 favor, and (4) that the public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. & Fin. 4 Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014), as amended (Mar. 11, 2014) (citing Winter v. 5 Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). 6 The Court finds that, based on the facts alleged in the Complaint and Motion for Temporary 7 Restraining Order, there “serious questions going to the merits” are raised by the motion. Alliance 8 For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-1132 (9th Cir. 2011); see also Clear 9 Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003). The Court finds that, if 10 it were to accept the Plaintiff’s allegations, there is the potential for the claim to be successful. The 11 Court further finds that Plaintiff will suffer irreparable harm if an injunction does not issue due to 12 the loss of the Property, a unique asset. See Dixon v. Thatcher, 742 P.2d 1029, 1030 (Nev. 1987). 13 The balance of equities is in favor of Plaintiff because the TRO will not harm Defendant’s interests 14 and there is a strong public interest in the validity of non-judicial foreclosure sales. Thus, Plaintiff’s 15 motion satisfies the requirements of a TRO. 16 The Court also finds that granting a TRO motion without written or oral notice to 17 Defendant or his attorney is proper in this case. Plaintiff has provided specific facts which clearly 18 show immediate and irreparable injury, loss, or damage will result to themselves before the 19 Defendant can be heard in opposition. Plaintiff’s attorney has also certified in writing the reasons 20 why it should not be required pursuant to Fed. R. Civ. P. 65(b), namely that the foreclosure sale is 21 set to occur on March 25, 2022. See ECF No. 5-7. 22 Federal Rule of Civil Procedure 65(c) provides that “The court may issue a…temporary 23 restraining order only if the movant gives security in an amount the court considers proper to pay 24 the costs and damages sustained by any party found to have been wrongfully enjoined or 25 restrained.” A district court retains discretion “as to the amount of security required, if any.” 26 Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (internal quotation marks and citations 27 omitted) (emphasis in original). The court may dispense with the filing of a bond if “there is no 28 realistic likelihood of harm to the defendant from enjoining his or her conduct.” Jorgensen v. 1| Cassiday, 320 F.3d 906, 919 (9th Cir. 2003). Accordingly, the Court finds that a de minimis bond 2| of $100 shall be required to be posted. 3 Based upon the Complaint, the Motion and all exhibits attached thereto, the discussion 4| above, and for good cause appearing, the Court orders as follows: 5 | Temporary Restraining Order 6 1. IT IS ORDERED that Plaintiff's Motion for a Temporary Restraining Order, without 7 | formal notice to the other side or hearing is GRANTED. The Temporary Restraining Order (TRO), 8 | as detailed below, shall remain in force for the earlier of 14 days or until a Preliminary Injunction 9| Hearing is scheduled. 10 2. ITIS FURTHER ORDERED that Defendant PHH, and its successors, assigns and agents 11 | are enjoined from continuing foreclosure proceedings on real property located of 4575 Dean 12) Martin Drive, Unit 812, Las Vegas, Nevada 89103 Parcel No. 162-20-312-083. Orders 14 1. ITIS FURTHER ORDERED that Defendant shall file any response to Plaintiff's 15 | Application for Preliminary Injunction on or before April 1, 2022. Plaintiffs will have up to and 16 | including April 5, 2022 to reply to Defendant’s response. The Court will provide details regarding 17 | a Preliminary Injunction hearing at a later date. 18 IT IS SO ORDERED. 19 DATED: March 24, 2022. RB 21 RICHARD F. BOULWARE, II 22 UNITED STATES DISTRICT JUDGE — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -3-