UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Howard R. Fogle, Jr.

and Sharon Fogle

v. Civil No. 08-cv-388-JD

Wilmington Finance,

a division of AIG Federal

Savings Bank,

CountryWide Home Loans, and

Saratoga First Guarantee Funding

O R D E R

On September 19, 2008, Howard R. Fogle, Jr. and Sharon Fogle

sued Wilmington Finance, a division of AIG Federal Savings Bank,

CountryWide Home Loans, and Saratoga First Guarantee Funding,

alleging, inter alia, violations of the Truth in Lending Act, 15

U.S.C. § 1601 et seq., and the Real Estate Settlement Procedures

Act of 1974, 12 U.S.C. § 2601 et seq.; breach of contract;

violations of the Fair Debt Collection Practices Act, 15 U.S.C. §

1692, and the New Hampshire Unfair, Deceptive or Unreasonable

Collection Practices Act, N.H. Rev. Stat. § 358-C; breach of

fiduciary duty, unjust enrichment, wrongful foreclosure, and

fraud. In the complaint, the plaintiffs also requested an

injunction or stay against any attempt to foreclose on the

property at issue, which is the Fogle’s residence.

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On February 22, 2010, more than a year after the plaintiffs

filed their complaint, they filed an emergency motion to extend

the time for effectuating service of the complaint on the

defendants for thirty days. The motion was granted. To date,

the plaintiffs have not filed any proof of service with the

court.

On March 12, 2010, the plaintiffs filed a “Motion for

Temporary Emergency Relief to Enjoin Pending Foreclosure.” They

state that CountryWide Home Loans intends to sell their residence

at public auction on March 19, 2010, at 9:00 a.m., and they ask

that the sale be temporarily enjoined. They also request a

hearing to determine whether the temporary injunction should

remain in place throughout the pendency of this case.

Although the plaintiffs’ motion contains a certification

that copies of the motion were sent by overnight mail to the

defendants, the defendants have not yet appeared in this case. 

The plaintiffs state that, as of March 11, 2010, their counsel

was waiting to receive the defendants’ waivers of service of

process. Because it appears that the defendants may not have

notice of the pendency of this suit, let alone notice of the

pending motion, and will not have an opportunity to be heard on

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the motion, it is construed only as a motion for a temporary

restraining order.1 

“[O]ur entire jurisprudence runs counter to the notion of

court action taken before reasonable notice and an opportunity to

be heard has been granted both sides of a dispute.” Granny Goose

Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers

Local No. 70, 415 U.S. 423, 439 (1974); see also PC Connection,

Inc. v. Bartrug, No. 07-cv-306-SM, 2007 WL 2902990, at *1 (D.N.H.

Oct. 3, 2007). For this reason, Rule 65 imposes “stringent

restrictions . . . on the availability of ex parte temporary

restraining orders.” Granny Goose Foods, 415 U.S. at 438-39.

Under Federal Rule of Civil Procedure 65(b),

The court may issue a temporary restraining order

without written or oral notice to the adverse party or

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 the reasons why it should not be required.

Here, the plaintiffs’ counsel has certified that copies of the

instant motion were sent to the defendants, but it appears that

his efforts to contact the defendants have not succeeded, given

1Although it is not fatal, the plaintiffs failed to attach

to their motion a proposed temporary restraining order, as

required by Local Rule 65.1.

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that there is no proof that they have been served with the

complaint and summons in this case, which was initiated in

September of 2008. Plaintiffs’ counsel has also not complied

with the second portion of Rule 65(b)(B), because he has not

explained why notice should not be required in this case.

An ex parte temporary restraining order is appropriate in

only a few circumstances: “where notice to the adverse party is

impossible either because the identity of the adverse party is

unknown or because a known party cannot be located in time for a

hearing,” or, “where notice could have been given to the adverse

party, . . . ex parte orders are proper [if] notice to the

defendant would render fruitless the further prosecution of the

action.” PC Connection, 2007 WL 2902990, at *1 (quotation marks

omitted). “There is a place . . . for ex parte issuance, without

notice, of temporary restraining orders of short duration; but

there is no place . . . for such orders where no showing is made

that it is impossible to serve or to notify the opposing parties

and to give them an opportunity to participate.” Carroll v.

President & Comm’rs of Princess Anne, 393 U.S. 175, 180 (1968). 

Because the plaintiffs have failed to show why notice should not

be required, the court will not issue a temporary restraining

order.

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Conclusion

For the foregoing reasons, the plaintiffs’ emergency motion

for injunctive relief (doc. no. 5) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 16, 2010

cc: Thomas P. Hand, Jr., Esquire

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