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Labossiere v. GMAC Mortgage

July 16, 2010

JOHN LABOSSIERE, PLAINTIFF,
v.
GMAC MORTGAGE, EXECUTIVE TRUSTEE SERVICES, LLC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., (MERS) FIRST AMERICAN, DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS, DEFENDANTS.



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

MEMORANDUM ORDER

INTRODUCTION

Pending before the Court in the above-entitled matter is Plaintiff John Labossiere's ("Labossiere") Motion for Temporary Restraining Order. (Henceforth "TRO", Dkt. 3.) The motion is made pursuant to Federal Rule of Civil Procedure 65. The matter is ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately represented in the briefs and record.

Accordingly, and in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this motion shall be decided on the record before this Court without oral argument.

FACTUAL AND PROCEDURAL BACKGROUND

Labossiere is a property owner in New Meadows, Idaho. In October of 2006 Labossiere entered into a contract with Homecomings Financial, LLC to purchase real property at 2997 Black Bear Drive in New Meadows. (Verified Compl. for Injunctive and Declaratory Relief for Unfair Practices Under the Fair Debt Collection Practices Act and for Breach of Fiduciary Duty at 3, Dkt. 2.) The Promissory Note and the Deed of Trust to this transaction were conveyed to Defendant Deutsche Bank National Trust Company Americas ("Deutsche Bank"). Defendant GMAC Mortgage ("GMAC") is a sub-servicer for Deutsche Bank. Defendant Executive Trustee Services, LLC ("Executive") is a non-judicial foreclosure servicer company under GMAC. Id. at 5. Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") is an electronic clearinghouse that records the transfer of mortgage debt obligations.

On July 21, 2009, Executive filed a Notice of Default and Election to Sell Under Deed of Trust with the Adams County Recorder. Id. On June 29, 2010, Labossiere filed this motion seeking a temporary restraining order to prevent that sale.

STANDARD OF LAW

Fed. R. Civ. P. 65(b) provides that:

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party of 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 reasons why it should not be required.*fn1 A temporary restraining order enjoining certain actions may issue even though a plaintiff's right to permanent injunctive relief is not certain. The grant or denial of a temporary restraining order or a preliminary injunction is a matter of the court's discretion exercised in conjunction with the principles of equity. See Inland Steel v. United States, 306 U.S. 153 (1939); Deckert v. Independence Shares Corp., 311 U.S. 282 (1940) and Stanley v. Univ. of Southern Ca., 13 F.3d 1313 (9th Cir. 1994).

The Ninth Circuit has treated the standard for determining whether a temporary restraining order should be granted as the same as a preliminary injunction. Golden Gate Restaurant Ass'n v. City and County of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008) (stating that the same is true for a stay pending appeal). The Supreme Court recently clarified the standard for a preliminary injunction to require a plaintiff to show "[1] he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his ...


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