Mesi et al v. JPMorgan Chase Bank et al, No. 3:2015cv00555 - Document 27 (D. Nev. 2015)

Court Description: ORDER denying 10 Motion for Temporary Restraining Order. Signed by Judge Robert C. Jones on 12/11/2015. (Copies have been distributed pursuant to the NEF - KR)
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Mesi et al v. JPMorgan Chase Bank et al Doc. 27 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 1 2 3 4 ERIC MESI AND BETTY MESI, Plaintiffs, 5 vs. 6 7 JPMORGAN CHASE BANK et al., 8 Defendants. 9 ) ) ) ) ) ) ) ) ) ) ) ) ) 3:15-cv-00555-RCJ-WGC ORDER 10 This case arises out of a disputed property foreclosure. Plaintiffs allege that Defendants 11 12 13 have violated numerous state and federal laws by engaging in fraudulent and unfair practices. Pending before the Court is a motion for a temporary restraining order to prevent the trustee sale 14 of Plaintiffs’ property scheduled for December 11, 2015. For the reasons given herein, the Court 15 16 denies the motion. 17 I. 18 FACTS AND PROCEDURAL HISTORY Plaintiffs’ home was completed in 2006, after which ownership was transferred to Eric 19 Mesi and Fred Mesi. They obtained a loan from Washington Mutual Bank for the amount of 20 21 $280,334.00, which was secured by a deed of trust. The property was later transferred to Betty L. 22 Mesi and to Fred Mesi who is now deceased. The deed of trust was transferred to Bank of 23 America. On February 4, 2014, Plaintiffs sued Defendants in Nevada state court in pro se for 24 wrongful foreclosure, declaratory relief, and unfair business practices, and also to quiet title and 25 cancel instruments. On October 13, 2015, Plaintiffs filed an Amended Complaint which asserted 26 27 various violations of Nevada law as well as violations of the federal False Claims Act, the 28 Racketeer Influenced and Corrupt Organizations Act (“RICO”), and the Fair Debt Collection 1 1 Practices Act (“FDCPA”). On November 13, 2015, Defendant JPMorgan Chase Bank, N.A. filed 2 a petition for removal with this Court, and Plaintiffs filed a motion to dismiss the petition. 3 Plaintiffs now ask the Court for a temporary restraining order to prevent a trustee sale of their 4 property scheduled for December 11, 2015 (ECF No. 10). 5 II. LEGAL STANDARDS 6 7 To obtain a temporary restraining order Under Fed. R. Civ. P. 65(b), a plaintiff must 8 make a showing that immediate and irreparable injury, loss, or damage will result to plaintiff 9 without a temporary restraining order. Temporary restraining orders are governed by the same 10 standard applicable to preliminary injunctions. See Cal. Indep. Sys. Operator Corp. v. Reliant 11 Energy Servs., Inc., 181 F. Supp. 2d 1111, 1126 (E.D. Cal. 2001) (“The standard for issuing a 12 13 preliminary injunction is the same as the standard for issuing a temporary restraining order.”). 14 The temporary restraining order “should be restricted to serving [its] underlying purpose of 15 preserving the status quo and preventing irreparable harm just so long as is necessary to hold a 16 hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers 17 18 19 20 21 22 23 24 25 Local No. 70, 415 U.S. 423, 439 (1974). The Ninth Circuit in the past set forth two separate sets of criteria for determining whether to grant preliminary injunctive relief: Under the traditional test, a plaintiff must show: (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases). The alternative test requires that a plaintiff demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor. 26 Taylor v. Westly, 488 F.3d 1197, 1200 (9th Cir. 2007). “These two formulations represent two 27 points on a sliding scale in which the required degree of irreparable harm increases as the 28 2 1 probability of success decreases.” Id. The Supreme Court has reiterated, however, that a plaintiff seeking an injunction must 2 3 4 demonstrate that irreparable harm is “likely,” not just possible. Winter v. NRDC, 129 S. Ct. 365, 374–76 (2008). Thus, “[t]he proper legal standard for preliminary injunctive relief requires a 5 party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer 6 7 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, 8 and that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 9 (9th Cir. 2009) (quoting Winter, 129 S. Ct. at 374). To be “likely” to succeed on the merits, a 10 plaintiff must show at a minimum a reasonable probability of success. Rockwell Automation, Inc. 11 v. Beckhoff Automation, LLC, 23 F. Supp. 3d 1236, 1242–44 (D. Nev. 2014). 12 13 III. ANALYSIS 14 A. Likelihood of Success on the Merits 15 Plaintiffs filed a lengthy Amended Complaint that includes numerous claims which are 16 difficult to decipher. They provide scattered and vague facts to support various allegations of 17 18 federal and state law and draw few connections between the facts and law. 19 1. Fair Debt Collection Practices Act 20 Plaintiffs appear to argue that Defendants have violated the Fair Debt Collection 21 Practices Act (“FDCPA”). 15 U.S.C. § 1692 et seq. One purpose of the FDCPA is “to eliminate 22 abusive debt collection practices by debt collectors.” Id. at § 1692(a). To achieve this purpose, 23 24 the Act prohibits harassing or abusive collection practices, false or misleading representations, 25 and unfair or unconscionable debt-collection practices. Id. at §§ 1692d–1692f. Plaintiffs allege 26 that Defendants have made misrepresentations in regard to the pending foreclosure and sale of 27 their home, but their allegations are scattered and unclear. Further, although some circuits have 28 3 1 held that parties engaging in mortgage foreclosure activity are “debt collectors” under the 2 FDCPA, see, e.g., Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 462 (6th Cir. 2013) (holding 3 that “filing any type of mortgage foreclosure action . . . is debt collection under the Act” and 4 citing similar holdings from sister circuits), courts in the Ninth Circuit have held that such 5 activity does not constitute debt collection under the FDCPA. See Diessner v. Mortgage Elec. 6 7 Registration Sys., 618 F. Supp. 2d 1184, 1189 & n.27 (D. Ariz. 2009) (holding that “the activity 8 of foreclosing on [a] property pursuant to a deed of trust is not collection of a debt within the 9 meaning of the FDCPA”; and citing pertinent cases in the footnote). Thus, Defendants might not 10 even be subject to the FDCPA. Based on the facts provided and pertinent law, Plaintiffs do not 11 have a reasonable probability of success on the merits of this claim. 12 13 2. 14 Plaintiffs claim that Defendants violated their constitutional rights under the First, Fifth, 15 Constitutional Claims, RICO, and Nevada Law Sixth, Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution. They provide 16 no specific allegations as to which rights under these amendments Defendants have violated. 17 18 Plaintiffs also allege that Defendants have violated RICO, U.C.C. Articles 1, 3, and 9, 19 and Nevada’s Deceptive Trade Practices and Unfair Trade Practices laws. See N.R.S. 598; 598A. 20 To support these allegations, Plaintiffs allege that Defendant National Default Servicing 21 Corporation (“NDSC”) harassed Plaintiffs, intentionally fabricated documents, and is stealing or 22 claiming possessions it has not purchased. They allege that Defendants have committed fraud by 23 24 fabricating a loan on their property and are now attempting to use that fraudulent loan to 25 foreclose on their property. (Am. Compl., 39–40, ECF No. 1-2). Again, the facts Plaintiffs 26 provide are vague and their allegations unclear. They provide random facts and fail to indicate 27 precisely what their claims are or how the facts apply to their claims. For example, “[t]o state a 28 4 1 claim under RICO, 18 U.S.C. § 1962(c), a plaintiff must demonstrate: (1) the conduct; (2) of an 2 enterprise; (3) through a pattern; (4) of racketeering activity.” Forsyth v. Humana, Inc., 114 F.3d 3 1467, 1481 (9th Cir. 1997). Plaintiffs have made only vague and minimal accusations that 4 Defendants are engaged in a pattern of racketeering activity. They also fail to identify which 5 specific portions of the Nevada statutes it cites apply to their claims. On the merits of these 6 7 claims, Plaintiffs also do not have a reasonable probability of success. 8 B. 9 Plaintiffs have not made any arguments that denying their motion for a temporary 10 Possibility of Irreparable Injury restraining order will result in irreparable injury. A trustee sale is scheduled for December 11, 11 2015 by which their property in Fernley, NV will be sold, but Plaintiffs have provided no 12 13 indication that the sale would cause them to suffer irreparable injury, such as leaving them 14 without a home. They merely argue that “[i]f NDSC forecloses, Betty Mesi will be owed a home 15 replacement” and that “Betty Mesi is highly stressed out and requires an [i]njunctive relief to 16 secure her property for more time to bring in expert witnesses from Fannie Mae and Freddie Mac 17 18 and debt auditors.” (Mot. 4–5). This factor does not favor Plaintiffs. 19 C. 20 Plaintiffs have presented no argument on this issue. The balance of hardships favors 21 Balance of Hardships Plaintiffs because they could lose their property if the Court denies the motion, whereas by 22 granting the motion Defendants would merely be delayed in foreclosing on the property. 23 24 25 26 27 D. Advancement of the Public Interest Plaintiffs have presented no argument on this issue. The public has an interest in seeing that home foreclosures occur based only on accurate evidence and fair practices. This factor supports Plaintiffs, even if minimally. 28 5 1 2 3 4 E. Other Defendant JPMorgan Chase Bank, N.A. filed a petition for removal with this Court, and Plaintiffs filed a motion to dismiss the petition, arguing primarily that it was untimely. Under 28 U.S.C. 1446(b), a defendant has thirty days from receiving the initial pleading to file for removal 5 to federal court. Under 1446(b)(3), if the initial pleading is not removable, then a defendant may 6 7 file for removal within thirty days of receiving “an amended pleading, motion, order or other 8 paper from which it may first be ascertained that the case is one which is or has become 9 removable.” Here, the initial pleading contained only state-law claims, whereas the amended 10 complaint contained various federal claims; thus, Defendants were permitted to file a petition for 11 removal within thirty days of receiving the Amended Complaint, which they have done. This 12 13 14 15 factor does not favor Plaintiffs. Although two of the factors favor Plaintiffs, the others weigh against them. They have not shown they have a reasonable probability of success on the merits of their claims or that denying 16 their motion will likely result in immediate and irreparable injury. 17 CONCLUSION 18 19 20 21 IT IS HEREBY ORDERED that the Motion for Temporary Restraining Order (ECF No. 10) is DENIED. IT IS SO ORDERED. 22 Dated this 11th day of December 2015. 23 24 25 _____________________________________ ROBERT C. JONES United States District Judge 26 27 28 6