Free Order on Motion for TRO - District Court of California - California

Case 3:08-cv-00646-W-LSP

Document 6

Filed 05/22/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 On April 9, 2008 Plaintiff Alejandro Banda ("Plaintiff"), proceeding pro se, filed 18 a very basic complaint generally alleging that Defendants Chase Home Finance, et. al. 19 were attempting to wrongfully undertake foreclosure proceedings at certain property 20 presumably owned by Plaintiff. (Doc. No. 1.) On May 20, 2008 Plaintiff filed an 21 "Amended Verified Complaint and Emergency Motion for Ex Parte Temporary 22 Restraining Order [TRO]." (Doc. No. 5.) 23 Unfortunately, Plaintiff has not provided any legal analysis showing that he is 24 entitled to an extraordinary TRO remedy. Without providing any facts and only citing
1 25 15 U.S.C. § 1635(f), Plaintiff states in a conclusory fashion that "it is likely that plaintiff

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ALEJANDRO BANDA, vs. Plaintiff, CASE NO. 08-CV-0646 W (LSP) ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER (Doc. No. 5.)

CHASE HOME FINANCE, LLC. et. al., Defendants.

26 will prevail on his claims." Plaintiff then states "[i]in an abundance of caution and 27 28
15 U.S.C. § 1635(f) simply sets forth the three-year time limit an obligor has to exercise his right of rescission. Nowhere does Plaintiff argue that he may exercise this right.
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Case 3:08-cv-00646-W-LSP

Document 6

Filed 05/22/2008

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1 based upon legal and equitable considerations, this Court should enter a Preliminary 2 Temporary Restraining Order to enjoin the unlawful detainer or writ of possession to 3 allow Plaintiff and Defendant to set forth their respective claims." (Pl.'s Mot. 2.) 4 Despite Plaintiff's characterization, "an abundance of caution" is not the proper 5 standard under which an application for TRO is decided. 6 More importantly, Plaintiff's TRO motion does not allege any relevant dates, e.g., 7 the date on which Plaintiff's loan closed, the date Defendant plans to foreclose on 8 Plaintiff's home, etc. Without knowing whether Plaintiff is likely to succeed on the 9 merits, and without knowing how imminent Plaintiff's injury might be, the Court does 10 not find that a TRO is warranted at this time. 11 In conclusion, the Court DENIES Plaintiff's motion for TRO. Simply, there is 12 too little evidence that Plaintiff's property is actually in foreclosure, when any 13 foreclosure auction might take place, and why Plaintiff is entitled to an extraordinary 14 TRO remedy. Given the nature of Plaintiff's action, though, the Court strongly suggests 15 that Plaintiff retain or consult with an attorney in order to be advised of his rights and 16 proceed in accordance with the applicable rules of law. 17 18 19 20 DATED: May 22, 2008 21 22 23 24 25 26 27 28
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IT IS SO ORDERED.

Hon. Thomas J. Whelan United States District Judge