Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Winstead v. EMC Mortgage Corp.

June 5, 2009

WHEELER R. WINSTEAD, PLAINTIFF,
v.
EMC MORTGAGE CORPORATION ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No.: 2

MEMORANDUM OPINION DENYING THE PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

I. INTRODUCTION

This matter comes before the court on the pro se plaintiff's motion for a temporary restraining order and preliminary injunction. The plaintiff filed a complaint along with the instant motion on May 28, 2009, seeking to prevent the defendants from foreclosing on his real property on June 9, 2009. The plaintiff asserts that the defendants violated the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 et seq., the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, and the National Housing Act ("NHA"), 12 U.S.C. §§ 1701 et seq. Defendants NRT Mid-Atlantic, LLC d/b/a Coldwell Banker Residential Broker ("Coldwell") and EMC Mortgage Corporation ("EMC") filed oppositions to the plaintiff's motion on June 3, 2009. Because the court determines that the plaintiff has failed to demonstrate that he is likely to succeed on the merits of any of his claims, the court denies the motion for injunctive relief.

II. FACTUAL & PROCEDURAL BACKGROUND

The plaintiff is the owner of real property located at 1226 F Street Northeast in the District of Columbia ("the property"), which he acquired on or about April 25, 2005 after executing a Deed of Trust in favor of Mortgage Electronic Registration Systems, Inc. Compl. ¶ 1; Def. EMC's Opp'n at 1.*fn1 On September 12, 2008, Diane S. Rosenberg, Mark D. Meyer and John A. Ansell, III were appointed as Substitute Trustees through a Deed of Appointment of Substitute Trustees. Def. EMC's Opp'n at 2. On May 20, 2009, Rosenberg sent the plaintiff a letter notifying him that the Substitute Trustees intended to sell the property at a public auction on June 9, 2009 at 10:34 a.m.*fn2 Compl., Ex. 6.

The plaintiff then filed suit and submitted the instant motion on May 28, 2009.*fn3 The plaintiff asserts that the defendants violated TILA, see Compl. ¶¶ 2-7, RESPA, see id. ¶¶ 8-10, the FDCPA, see id. ¶ 13(1), and the NHA, see id. ¶ 13(2). Upon receipt of the motion on May 29, 2009, the court set an expedited briefing schedule, and defendants Coldwell and EMC filed oppositions to the motion on June 3, 2009. The plaintiff filed a reply to defendant Coldwell's opposition on June 4, 2009.

III. ANALYSIS

A. Legal Standard for Injunctive Relief

This court may issue interim injunctive relief only when the movant demonstrates "[1] that 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 favor, and [4] that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008) (citing Munaf v. Geren, 128 S.Ct. 2207, 2218-19 (2008)). It is particularly important for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085 (1992) (per curiam). Indeed, absent a "substantial indication" of likely success on the merits, "there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review." Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999) (internal quotation omitted).

Moreover, the other salient factor in the injunctive relief analysis is irreparable injury. A movant must "demonstrate that irreparable injury is likely in the absence of an injunction." Winter, 129 S.Ct. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)). Indeed, if a party fails to make a sufficient showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1986).Provided the plaintiff demonstrates a likelihood of success on the merits and of irreparable injury, the court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987). Finally, "courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).

As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). The Supreme Court has observed "that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Id. Therefore, although the trial court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted lightly.In addition, any injunction that the court issues must be carefully circumscribed and "tailored to remedy the harm shown." Nat'l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C. Cir. 1990).

B. The Court Denies the Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction

The plaintiff claims that he has satisfied all four prongs required to obtain injunctive relief. Compl. at 18-19. The defendants retort that the plaintiff has failed to show a likelihood of success on the merits because, among other reasons, the claims are time-barred, see Def. Coldwell's Opp'n at 2-3; Def. EMC's Opp'n at 4-8, that he will not suffer irreparable injury if the property is foreclosed on, Def. Coldwell's Opp'n at 3; Def. EMC's Opp'n at 8, and that the balance of the hardships and the public interest factors weigh against injunctive relief, Def. Coldwell's Opp'n ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.