United States District Court, W.D. Washington, Seattle
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Plaintiffs' Motion for
Temporary Restraining Order. Dkt. #4. Plaintiffs allege that
they are the owners of the home and land located at 15844
48th Ave NE, Woodinville, WA 98072. Id. Plaintiffs
further allege that they completed a Chapter 12 bankruptcy
plan that reorganized their mortgage loan, and that following
completion of the bankruptcy plan Defendant Ocwen has failed
to account for payments, has rejected payments, and has
commenced a foreclosure due to Ocwen's own errors.
Id. Plaintiffs assert that despite the fact that
they are current on their loan, Defendants are foreclosing on
their home, which is scheduled to take place on August 25,
2017. Dkt. #6 at ¶ 12.
considered the Complaint, the Motion for Temporary
Restraining Order, the Declaration of counsel, the
Declaration of Cecil and Pamela Thomas, and the remainder of
the record, the Court hereby finds and ORDERS as follows:
federal court may issue a TRO “with or without written
or oral notice to the adverse party” only if
“specific facts in the affidavit . . . 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 the moving party “certifies in
writing any efforts made to give notice and the reasons why
it should not be required.” Fed.R.Civ.P. 65(b).
“Motions for temporary restraining orders without
notice to and an opportunity to be heard by the adverse party
are disfavored and will rarely be granted.” Local Rules
W.D. Wash. LCR 65(b). It appears that Plaintiff has provided
Defendants with notice of her motion. Dkt. #85-2. The Ninth
Circuit has described the standards for deciding whether to
grant a motion for a preliminary injunction:
To obtain a preliminary injunction, the moving party must
show either (1) a combination of probable success on the
merits and the possibility of irreparable injury, or (2) that
serious questions are raised and the balance of hardships
tips sharply in its favor. These formulations are not
different tests but represent two points on a sliding scale
in which the degree of irreparable harm increases as the
probability of success on the merits decreases. Under either
formulation, the moving party must demonstrate a significant
threat of irreparable injury, irrespective of the magnitude
of the injury.
Big Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch.
Dist., 868 F.2d 1085, 1088 (9th Cir. 1989) (citations
omitted). The speculative risk of a possible injury is not
enough; the threatened harm must be imminent. Caribbean
Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674
(9th Cir. 1988); Fed. R. Civ. Proc. 65(b)(1)(A). The
standards for issuing a TRO are similar to those required for
a preliminary injunction. Lockheed Missile & Space
Co., Inc. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323
(N.D. Cal. 1995).
Plaintiffs have sufficiently demonstrated to the Court that
they are entitled to a temporary restraining order
(“TRO”), restraining Defendants, and anyone
acting in concert with them, from foreclosing on
Plaintiffs' real property located at 15844 48th Ave NE,
Woodinville, WA 98072, without further Order from this Court.
Pursuant to Federal Rule of Civil Procedure 65(b)(1) a
temporary restraining order may issue without written or oral
notice to the adverse party or his attorney if immediate and
irreparable injury, loss or damage will result to the
applicant before the adverse party or his attorney can be
heard in opposition, and if the movant's attorney
certifies efforts made to give notice and reasons why it
should not be required. Plaintiffs' counsel have
demonstrated their efforts to give notice to opposing
counsel. Further, Plaintiffs have sufficiently demonstrated
that if a foreclosure is not immediately restrained, Mr. and
Mrs. Thomas will suffer substantial and irreparable injury
due to the loss of their family residence, as they have
declared that they have no other place to go, and will suffer
the loss of their family business which is also located on
the property. Dkts. #5 and #6.
Under the circumstances of this case, it is proper to issue a
temporary restraining order without a prior hearing because
the foreclosure will occur before a hearing may be had.
Court finds that Plaintiffs, in their pleadings and
accompanying declarations, have sufficiently demonstrated a
likelihood of success on the merits to permit this
restraining order to issue.
Defendants are unlikely to suffer substantial harm if the
foreclosure is immediately restrained until a hearing can be
held, the Court finds that the balance of equities in this
matter favors Plaintiffs and entitles them to immediate
injunctive relief to preserve the status quo pending hearing
on a motion for preliminary injunction.
Order shall expire on the date set below for hearing on a
Motion for Preliminary Injunction, unless extended for good
matter of any bond shall be reserved until the hearing on a
Motion for Preliminary Injunction.
Court will hold a hearing on Plaintiffs' Motion for
Preliminary Injunction, on Friday, September 8, 2017,
at 12:00 p.m., at which time Defendants will be
asked to ...