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Koole v. Wells Fargo Bank, N.A.

United States District Court, Eastern District of Michigan, Southern Division

May 27, 2015

DANNY KOOLE, an individual, and STACI KOOLE, Plaintiffs,
v.
WELLS FARGO BANK, NA, Defendant.

ORDER DENYING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER OR, IN THE ALTERNATIVE, FOR A PRELIMINARY INJUNCTION (ECF NO. 8)

PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiffs Danny and Staci Koole’s Motion for a Temporary Restraining Order or, In the Alternative, for Preliminary Injunction Enjoining Foreclosure Sale. (ECF No. 8.) Defendant Wells Fargo Bank N. A. (“Wells Fargo”) has filed a response (ECF No. 11) and the Court held a telephonic hearing on the matter on May 15, 2015. For the reasons that follow, the Court DENIES the motion for preliminary injunctive relief.

I. BACKGROUND

Plaintiffs filed this Complaint in Genesee County Circuit Court on August 25, 2014, alleging wrongful foreclosure (Count I), breach of contract (Count II) and fraudulent misrepresentation (Count III). Wells Fargo removed the case to this Court on October 15, 2014. (ECF No. 1 Notice of Removal and Complaint.) The Court issued a Scheduling Order on December 22, 2014, setting forth a discovery cutoff date of March 6, 2015, and a dispositive motion deadline of May 8, 2015. (ECF No. 6, Civil Case Management and Scheduling Order.)

On May 5, 2015, after the close of discovery and just days before the dispositive motion deadline, Plaintiffs filed an Emergency Motion for Temporary Restraining Order or, In the Alternative, for a Preliminary Injunction Enjoining Foreclosure Sale. (ECF No. 8.) Plaintiffs’ motion asserted that a foreclosure sale was scheduled for May 6, 2015, although the motion attached no exhibits whatsoever that would indicate this to be the case, or that would even indicate that foreclosure by advertisement of their property had been initiated. The Court held a telephonic status conference with the parties on May 5, 2015, during which Wells Fargo agreed to maintain the status quo with respect to Plaintiffs’ property. The Court issued an Order that same day reflecting what had occurred during the May 5, 2015, telephonic conference and set May 15, 2015, for a follow up telephonic conference to take up the merits of the motion for a temporary restraining order. (ECF No. 9, Order.) On May 14, 2015, Wells Fargo filed its response to the motion for a temporary restraining order. (ECF No. 11.) On May 15, 2015, the telephonic hearing took place as scheduled. The Court learned at the hearing that Plaintiffs last made a payment on their Loan sometime in 2010. For the reasons that follow, the Court DENIES Plaintiffs’ motion for injunctive relief.

II. STANDARD OF REVIEW

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008) (citation omitted). Plaintiff bears the burden of demonstrating entitlement to preliminary injunctive relief and the burden is substantial. Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Such relief will only be granted where “the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). When considering a motion for injunctive relief, the Court must balance the following factors: (1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent preliminary injunctive relief, (3) whether granting the preliminary injunctive relief would cause substantial harm to others, and (4) whether the public interest would be served by granting the preliminary injunctive relief. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 540 (6th Cir. 2007). “These factors are not prerequisites, but are factors that are to be balanced against each other.” Overstreet, 305 F.3d at 573. “The proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion.” Leary, 228 F.3d at 739. Plaintiff must do more than just “create a jury issue, ” and must persuade the court that it has a likelihood of succeeding on the merits of its claims. Id. “This is because the preliminary injunction is an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in [the] limited circumstances which clearly demand it.” Id. (internal quotation marks and citation omitted) (alteration in original). “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Medical Examiners, 225 F.3d 620, 625 (6th Cir. 2000). These same factors are considered in evaluating whether to issue a temporary restraining order. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008).

Plaintiff must demonstrate that it is likely to suffer irreparable harm in the absence of an injunction. See Winter, 555 U.S. at 22 (“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. . . . Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”) (emphasis in original) (internal citations omitted). “The ‘key word’ in determining the extent of an injury sufficient to support the award of injunctive relief is ‘irreparable.’ Mere injuries, however substantial, are not enough. Rather, ‘the harm alleged must be both certain and immediate, rather than speculative or theoretical.’” Hudson v. Caruso, 748 F.Supp.2d 721, 730 (W.D. Mich. 2010) (quoting Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991)).

III. ANALYSIS

Although discovery in this case is complete, Plaintiffs’ motion attaches no affidavits or other documentary evidence to support the claim that they are entitled to the extraordinary remedy of injunctive relief. The Complaint itself attached no exhibits and offers little in the way of detail that would enable the Court to determine to any reasonable degree of certainty whether Plaintiffs have a substantial likelihood of succeeding on the claims set forth in the Complaint. Defendant’s Response attaches some documents, including the Note, Mortgage and a series of forbearance agreements and loan modifications and related correspondence.[1]

Taking together the allegations of the Complaint and the documents submitted by Defendant in response to Plaintiffs’ motion for injunctive relief, documents which were either referred to in the Complaint or are central to the claims in the Complaint, the following facts appear uncontested. On August 23, 2008, Plaintiffs obtained a mortgage loan (“the Loan”) from Metro Finance in the amount of $123, 972.00 evidenced by a Note dated August 23, 2008. (Compl. ¶ 3; Def.’s Resp. Ex. A, Note.) As security for repayment of the Note, Plaintiff executed a Mortgage (“the Mortgage”). (Def.’s Resp. Ex. B, Mortgage.) The Mortgage was recorded with the Genesee County Register of Deeds on September 8, 2008. (Def.’s Resp. Ex. B.)

Shortly thereafter, at least as early as January, 2009, Plaintiffs were having difficulty meeting their obligations under the Note and contacted Defendant to obtain some form of relief from their financial obligations under the Note. What followed was a series of forbearance and loan modification agreements. (Pls.’ Compl. ¶¶ 7, 19; Def.’s Resp. Ex. C-E.) Plaintiffs’ final effort to meet their obligations under the Loan was an offer in May, 2015, of a short sale of the home in the amount of $52, 500. (Def.’s Resp. Ex. H.) The balance due and owing on the Loan at the time was approximately $139, 000.00. (Pls.’ Compl. ¶ 6; Def.’s Resp. Ex. E.) Defendant declined the short sale, which represented a fraction of the outstanding loan balance. (Def.’s Resp. 5; Ex. I.)

According to Defendant, following the rejection of the short sale, Defendant transferred the case to Attorneys Trott & Trott with instructions to proceed with a judicial foreclosure in state court. (Def.’s Resp. 5.) Before Trott & Trott had the opportunity to file that action, Plaintiffs filed a Complaint in Genesee County Circuit Court that has now been removed to this Court. According to Defendant, at the time that Plaintiffs filed this Complaint seeking to halt a foreclosure by advertisement, no foreclosure by advertisement had been initiated. Id. The ...


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