Paradise Harbor Place Trust v. Bank of America, N.A.

• Court: District Court, D. Nevada
• Decided: March 2, 2022
• Docket: 2:22-cv-00313
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 PARADISE HARBOR PLACE TRUST, Case No. 2:22-CV-313 JCM (EJY) 8 Plaintiff(s), ORDER 9 v. 10 BANK OF AMERICA, N.A., 11 Defendant(s). 12 13 Presently before the court is Paradise Harbor Place Trust’s (“Paradise”) motions for a 14 temporary restraining order (ECF No. 5) and injunctive relief (ECF No. 7). Bank of America, 15 N.A. (“BANA”) filed responses (ECF Nos. 13, 14), to which Paradise replied (ECF No. 15). 16 I. Background 17 This matter arises from an impending foreclosure sale of real property located at 2601 18 Vendange Place, Henderson, Nevada, 89044 (the “property”), set for March 4, 2022. (ECF No. 19 5 at 1). In 2008, a deed of trust was recorded against the property. (ECF No. 5-3). In summer 20 of 2012, non-party Vendange Place Trust purchased the property at a foreclosure sale for 21 $6,350.00 and then transferred it to plaintiff Paradise for $10. (ECF Nos. 5-1; 5-2). On August 22 29, 2012, the deed of trust was assigned to BANA. (ECF No. 5-4). 23 In 2019, on another matter concerning the property where both Paradise and BANA were 24 parties, this court held that “the homeowners association’s non-judicial foreclosure sale 25 conducted on June 8, 2012[,] did not extinguish the deed of trust, and the property located at 26 2601 Vendange Place in Henderson, Nevada remains subject to the deed of trust.” Bank of 27 America, N.A. v. Madeira Canyon Homeowners’ Association et al., Case No. 2:16-cv-00444- 28 APG-NJK, ECF No. 86 (D. Nev. Nov. 13, 2019). 1 On October 27, 2021, BANA caused a notice of default and election to cause sale of the 2 property under the deed of trust to be recorded because no payments had been made on the deed 3 of trust since 2010. (See ECF No. 5-5). Then, on January 31, 2022, BANA recorded a notice of 4 trustee’s sale for the property. (ECF No. 5-6). 5 On January 28, 2022, Paradise brought this suit in Nevada state court asserting claims 6 against BANA for 1) quiet title/declaratory relief, 2) slander of title, 3) fraud/misrepresentation, 7 4) recission, and 5) unjust enrichment. (ECF No. 1-1). BANA then timely removed this matter 8 to this court. (ECF No. 1). 9 Paradise now seeks a temporary restraining order and preliminary injunction enjoining 10 any foreclosure on the property during the pendency of this case. (ECF Nos. 5, 7). 11 II. Legal Standard 12 Under Federal Rule of Civil Procedure 65, a court may issue a temporary restraining 13 order (“TRO”) when the movant alleges “specific facts in an affidavit” that immediate and 14 irreparable harm will occur before the adverse party can be heard in opposition. FED. R. CIV. P. 15 65(b)(1)(A). TROs and preliminary injunctions are extraordinary remedies meant to “preserve 16 the status quo” and “prevent irreparable loss of rights prior to judgment.” Estes v. Gaston, No. 17 2:12-cv-1853-JCM-VCF, 2012 WL 5839490, at *2 (D. Nev. Nov. 16, 2012); see also Sierra On- 18 Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). The standard for 19 granting a TRO is “substantially identical” to the standard for granting a preliminary injunction. 20 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). 21 The court considers the following elements in determining whether to grant preliminary 22 injunctive relief: (1) a likelihood of success on the merits; (2) a likelihood of irreparable injury if 23 preliminary relief is not granted; (3) balance of hardships; and (4) advancement of the public 24 interest. Winter v. N.R.D.C., 555 U.S. 7, 20 (2008); Stanley v. Univ. of S. California, 13 F.3d 25 1313, 1319 (9th Cir. 1994). 26 The movant must satisfy all four elements; however, “a stronger showing of one element 27 may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 28 1127, 1131 (9th Cir. 2011). This “sliding scale” approach dictates that when the balance of 1 hardships weighs heavily in the movant’s favor, he only needs to demonstrate “serious questions 2 going to the merits.” Id. at 1135. 3 III. Discussion 4 Having considered the Winter factors, the court DENIES Paradise’s motions for a 5 temporary restraining order (ECF No. 5) and preliminary injunction (ECF No. 7); primarily 6 because the balance of hardships is not in Paradise’s favor. 7 Paradise argues that the balance of hardships is in its1 favor because it may suffer 8 irreparable harm if the sale occurs and “[n]o factor which BANA may present for holding the 9 sale immediately, as opposed to when this litigation is concluded, does not equally fall upon 10 [Paradise].” (ECF No. 5 at 9). This argument is unavailing. 11 As Paradise is aware, this court has already held that the property was purchased subject 12 to the deed of trust. See Bank of America, N.A. v. Madeira Canyon Homeowners’ Association et 13 al., Case No. 2:16-cv-00444-APG-NJK, ECF No. 86 (D. Nev. Nov. 13, 2019). Yet, despite this 14 court’s holding over two years ago that the deed of trust is valid, Paradise has yet to make a 15 payment pursuant to the deed of trust. 16 Though Paradise now claims that “BANA created the issue which the parties now ask 17 this [c]ourt to address,” it is Paradise who purchased the property, lost its litigation over the deed 18 of trust, and still failed to even attempt to make payments until now (the time that it could 19 ostensibly assert an argument that the deed was extinguished because more than ten years have 20 passed since the underlying loan was allegedly accelerated). (See ECF No. 5 at 8–9). Though 21 Paradise argues that its failure to pay is irrelevant if the deed of trust was extinguished, it 22 assumed the obligation to make payments years before the time it argues that the deed was 23 extinguished. (See ECF No. 15 at 8). 24 Paradise’s arguments border on bad faith attempts to goad the court into imposing the 25 extraordinary remedy of injunctive relief on an extreme timeline because Paradise stalled on 26 satisfying its obligations until the risk of its default—foreclosure—was eminently upon it. 27 28 1 Though, yet again, counsel argues that the equities favor “Saticoy” in light of the record. 1 At bottom, Paradise stands to lose revenue from an investment that it has refused to pay for despite this court’s judgment. Meanwhile, if the court grants injunctive relief, BANA risks suffering further losses on the debt obligation that it is owed under the deed of trust. These hardships are very similar; thus, the balance of hardships does not tip in favor of Paradise. 5 Therefore, even assuming that Paradise demonstrates “serious questions going to the 6| merits,” and irreparable harm,’ it is not entitled to injunctive relief under the traditional or 7 | sliding scale approach.* See Cottrell, 632 F.3d at 1131. Accordingly, Paradise’s motions are 8 | denied. 9| IV. Conclusion 10 Accordingly, 11 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Paradise’s motions for a 12 | temporary restraining order (ECF No. 5) and injunctive relief (ECF No. 7) be, and the same 13 | hereby are, DENIED. 14 DATED March 2, 2022. 15 Pitas C Atal Wns, 16 UNFTED'STATES DISTRICT JUDGE 17 18 19 20 21 22 23 > Paradise does not demonstrate serious questions going to the merits. Its claims rest upon a phantom acceleration notice that it argues was “presumably” issued to the prior title 24 | holders because such practices were common in 2010. Yet, when the Supreme Court of Nevada addressed acceleration clauses in Clayton v. Gardner, it held that “acceleration is seldom 25 implied, and courts usually require that an acceleration be exercised in a manner so clear and unequivocal that it leaves no doubt as to the lender’s intention.” 813 P.2d 997, 999 (Nev. 1991) 26 (quoting United States v. Feterl, 849 F.2d 354, 357 (8th Cir. 1988)). 27 3 Real property generally does constitute irreparable harm. 28 * Even assuming it satisfied the other factors, Paradise’s public policy argument is also unavailing. es C. Mahan District Judge -4-