Ritter et al v. Countrywide Home Loans, Inc. et al, No. 2:2010cv00634 - Document 20 (D. Nev. 2010)

Court Description: ORDER Denying 19 Plaintiff's Emergency Motion for Temporary Restraining Order. IT IS FURTHER ORDERED that the Clerk of Court shall unseal this motion as Plaintiffs have failed to comply with the ex parte requirements of Local Rule 7-5. IT IS FURTHER ORDERED that the Clerk of Court shall issue a Notice Regarding Intention to Dismiss Pursuant to Rule 4(m). Signed by Chief Judge Roger L. Hunt on 9/23/10. (Copies have been distributed pursuant to the NEF - EDS)
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Ritter et al v. Countrywide Home Loans, Inc. et al Doc. 20 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 RENATO R. RITTER; PATRICIA M. RITTER, ) ) ) Plaintiffs, ) ) vs. ) ) COUNTRYWIDE HOME LOANS, INC.; ) RECONTRUST COMPANY, N.A.; ) NATIONAL DEFAULT SERVICING ) CORPORATION; LITTON LOAN ) SERVICING; MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS, INC.; ) BANK OF AMERICA; THE BANK OF ) NEW YORK MELLON F/K/A THE BANK ) OF NEW YORK; DOES I-X; ROES I-X; ) Inclusive, ) ) Defendants. ) _______________________________________) Case No.: 2:10-cv-00634-RLH-RJJ ORDER (Second Motion for Temporary Restraining Order–#19) Before the Court is Plaintiffs Renato and Patricia Ritter’s ex parte Second Motion for Temporary Restraining Order (“TRO”) (#19), filed September 21, 2010. BACKGROUND This dispute arises from Plaintiffs’ allegations that their mortgage lenders 25 committed illegal acts and are now attempting to wrongfully foreclose upon their property located 26 at 8190 Cassian Court, Las Vegas, Nevada. Plaintiffs admit they are parties to a mortgage AO 72 (Rev. 8/82) 1 Dockets.Justia.com 1 obligation and have lived in the house for a number of years, but now allege, “upon information 2 and belief, the true lender was the New York (or other location) investor, and investors, who 3 purchased the securitized instruments promoted by Wall Street investment bankers.” (Dkt. #1, 4 Compl. ¶¶ D, 1, 16.) Plaintiffs claim they “have no idea whom, [sic] if anyone, is the true holder 5 in due course (if there is one) of the note related to the property[;]” and that none of the 6 Defendants have standing in connection with the loan transaction because they cannot “show the 7 entire chain of title of the notes and the entire chain of title of the deeds of trust.” (Id. ¶¶ 23, 25.) 8 On May 3, 2010, Plaintiffs commenced this action. On June 3, one day before a 9 scheduled foreclosure sale, Plaintiffs filed their first ex parte TRO motion requesting an order 10 staying any foreclosure actions, unlawful detainer, or eviction actions. The Court denied the 11 motion because Plaintiffs’ factual allegations failed to demonstrate a likelihood of success. (Dkt. 12 #6, Order, June 4, 2010.) Since then, Plaintiffs have yet to file proof of service of Defendants, 13 despite having received additional time to do so until September 10. (Dkt. #18, Order granting 14 Dkt. #17, Pl.’s 2nd Emerg. Mot. to Extend Time.) Plaintiffs’ counsel, Jeffrey D. Conway, has now filed a second ex parte TRO 15 16 motion in an attempt to prevent the sale of their house in a non-judicial foreclosure sale scheduled 17 for “May 3, 2010.” (Dkt. 19, Pl.’s Mot. ¶ 2.) Mr. Conway claims this second motion is based 18 upon new case law in Plaintiffs’ favor and additional facts. For the reasons stated in the June 4 19 Order and the additional reasons given below, the Court denies Plaintiffs’ second TRO motion. 20 DISCUSSION 21 As a preliminary matter, the Court notes that Mr. Conway requests injunctive relief 22 on a foreclosure sale that would have occurred over four months ago on May 3, 2010. The Court 23 could therefore deny the motion as moot. Nevertheless, the Court will address the merits of the 24 motion as if the foreclosure sale is scheduled to occur on a future date rather than delaying the 25 discussion until Mr. Conway files an inevitable third emergency TRO motion. 26 / AO 72 (Rev. 8/82) 2 1 I. TRO Motion 2 Under Rule 65(b) of the Federal Rules of Civil Procedure, plaintiffs seeking a 3 temporary restraining order must establish: (1) a likelihood of success on the merits, (2) a 4 likelihood of irreparable harm in the absence of preliminary relief, (3) the balance of equities tips 5 in their favor, and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, 6 Inc., 129 S. Ct. 365, 374 (2008). Applying Winter, the Ninth Circuit has since held that, to the 7 extent previous cases suggested a lesser standard, “they are no longer controlling, or even viable.” 8 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). Thus, a party must satisfy each of 9 these four requirements. 10 11 A. Ex Parte Relief Local Rule 7-5 states, “[a]ll ex parte motions applications or requests shall contain 12 a statement showing good cause why the matter was submitted to the court without notice to all 13 parties, [and] [a]ll ex parte matters shall state the efforts made to obtain a stipulation and why a 14 stipulation was not obtained.” Furthermore, the standard for obtaining ex parte relief under Rule 15 65 is very stringent. Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). The 16 Court will only issue an ex parte TRO where it appears there would be an irreparable injury before 17 the responding party can be heard. Fed. R. Civ. P. 65(b)(1)(A). In reality, a TRO is a temporary 18 preliminary injunction issued for a limited period of time until the time when the opposing party 19 has an opportunity to be heard. Rule 65’s stringent restrictions on ex parte relief “reflect the fact 20 that our entire jurisprudence runs counter to the notion of court action taken before reasonable 21 notice and an opportunity to be heard has been granted both sides of a dispute.” Granny Goose 22 Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 438–39 (1974). 23 In this case, Plaintiffs have had ample time—over four months—to notify 24 Defendants of their claims and give them an opportunity to be heard before the Court. Mr. 25 Conway states, “Plaintiffs have given notice of this Motion to Defendant National Default 26 Servicing Corporation, purported trustee, and acted diligently in this matter.” (Dkt. #19, Mot. ¶ AO 72 (Rev. 8/82) 3 1 17.) This conclusory statement does not satisfy Local Rule 7-5(a)’s requirement for a statement 2 “showing good cause why the matter was submitted to the court without notice to all parties” 3 (emphasis added) because it fails to state the reason for the ex parte filing or list each Defendant. 4 The Court cannot infer good cause or notice to all parties from this statement. In addition, Mr. 5 Conway fails to show any efforts to obtain a stipulation pursuant to Local Rule 7-5(b) by stating 6 Plaintiffs have “acted diligently.” The Court notes that diligent litigants and their counsel do not 7 fail to comply with court orders, the Federal Rules of Civil Procedure, or the Local Rules. 8 Accordingly, the Court finds that Plaintiff has not met his burden in submitting the filing under ex 9 parte seal. The Court therefore orders the Clerk of the Court to unseal the documents. 10 B. 11 New Case Law Mr. Conway argues that “an ever-expanding body of case law establish[es] that a 12 party cannot foreclose without being able to establish, by copies of note transfers, that it is in fact 13 the holder in due course of the underlying note.” (Dkt. #19, Mot. ¶ 3.) Specifically, Mr. Conway 14 states that cases from California, Maine, and Arkansas (among others) support his position that 15 Defendants must show Plaintiffs they are the current holders of Plaintiffs’ note as a prerequisite to 16 foreclosure. (Id. ¶ 8.) This argument presents two serious problems. First, as all capable 17 attorneys know, the Court is not bound by state court or bankruptcy cases from California, Maine, 18 Arkansas, or any other state. Perhaps if these cases interpreted Nevada foreclosure law, which 19 governs Plaintiffs’ property, the Court could assess their persuasive value. However, the cases Mr. 20 Conway cites do not interpret Nevada law. Second, and more importantly, the ever-expanding 21 body of case law within this district holds that the Nevada law governing nonjudicial foreclosure, 22 NRS § 107.080, does not require a lender to produce the original note as a prerequisite to 23 / 24 / 25 / 26 / AO 72 (Rev. 8/82) 4 1 nonjudicial foreclosure proceedings. See Weingartner v. Chase Home Finance, LLC, 702 2 F.Supp.2d 1276, 1280 (D. Nev. 2010).1 Mr. Conway incorrectly argues that Mortgage Electronic Registration Systems, Inc. 3 4 v. Chong supports his argument that “‘MERS’ had no standing as a creditor to pursue its claim 5 against the property, due to inability to show a valid chain of title on transfers of the Note” (Dkt. 6 #19, Mot. ¶ 8). Chong, No. 2:09-cv-00661-KJD-LRL, 2009 WL 6524286 (D. Nev. Dec. 4, 2009). 7 Mr. Conway misinterprets the court’s distinction between standing to lift an automatic stay in a 8 bankruptcy proceeding and statutory authority to commence nonjudicial foreclosure proceedings. 9 In Chong, the court noted that under the Federal Rules of Bankruptcy Procedure and Local Rules, 10 “MERS must at least provide evidence of its alleged agency relationship with the real party in 11 interest in order to have standing to seek relief from stay.” Id. (quoting In re Jacobson, 402 B.R. 12 359, 366 n.7 (Bankr. W.D. Wash. 2009) (internal quote omitted)); see also, In re Mitchell, 423 13 B.R. 914, 916 (D. Nev. 2009). On the other hand, in cases such as Weingartner where 14 homeowners bring suit against their lenders and related entities, the court has consistently held that 15 NRS § 107.080 does not require MERS or any other similar entity to show it is the real party in 16 interest to pursue nonjudicial foreclosure actions. See, cases cited supra n.1. The weight of 17 authority in this district clearly debunks this oftrepeated claim. Plaintiffs have therefore failed to 18 carry their burden of showing they are likely to succeed in this action. Accordingly, the Court 19 denies Plaintiffs’ TRO Motion. 20 / 21 / 22 / 23 1 24 25 26 AO 72 (Rev. 8/82) See also, Birkland v. Silver State Fin. Services, Inc., No. 2:10-cv-00035-KJD-LRL, 2010 W L 3419372 (D. Nev. Aug. 25, 2010); Moon v. Countrywide Home Loans, Inc., No. 3:09-cv-00298-ECR-VPC, 2010 W L 522753 (D. Nev. Feb. 9, 2010); Gomez v. Countrywide Bank, FSB., No. 2:09-cv-01489-RCJ-LRL, 2009 W L 3617650 (D. Nev. Oct.26, 2009), Ernestberg v. Mortgage Investors Group, No. 2:08-cv-01304-RCJ-RJJ, 2009 W L 160241 (D. Nev. Jan. 22, 2009); Wayne v. HomEq Servicing, Inc., No. 2:08-cv-00781 RCJ-LRL, 2008 W L 4642595 (D. Nev. Oct. 16, 2008). 5 1 CONCLUSION 2 Accordingly, and for good cause appearing, 3 IT IS HEREBY ORDERED that Plaintiffs’ Emergency Motion for Temporary 4 5 6 7 8 9 Restraining Order (#19) is DENIED. IT IS FURTHER ORDERED that the Clerk of the Court shall unseal this motion as Plaintiffs have failed to comply with the ex parte requirements of Local Rule 7-5. IT IS FURTHER ORDERED that the Clerk of the Court shall issue a Notice Regarding Intention to Dismiss Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Dated: September 23, 2010. 10 11 ____________________________________ ROGER L. HUNT Chief United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev. 8/82) 6