United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
F. Cox U.S. District Judge
originally filed this pro se action in St. Claire
County Circuit Court. Defendants U.S. Bank, N.A., Ocwen Loan
Servicing, LLC, and Trott Law, P.C.,
(“Defendants”) subsequently removed this action
to the United States District Court for the Eastern District
of Michigan based upon federal question jurisdiction. (Doc.
#1). Plaintiff's complaint seeks to “halt the
pending foreclosure and sheriff's sale [of
Plaintiff's property] because the entity that purportedly
holds [Plaintiff's] Note, [Defendants], have breached and
otherwise failed to abide by Michigan's Uniform
Commercial Code, § 440.1101.” (Doc. 1-1, at Pg ID
complaint alleges the following seven counts against
Defendants: (1) Breach of Contract; (2) Unjust Enrichment;
(3) Conversion; (4) Slander of Title; (5) Misrepresentation;
(6) Wrongful Foreclosure; and (7) violations of the Fair Debt
Collections Practices Act.
September 1, 2016, Defendants filed a Motion to Dismiss
Plaintiff's complaint. (Doc. #5). Plaintiff filed a
response to the motion on October 11, 2016. (Doc. #11). The
motion is currently pending before Magistrate Judge Anthony
matter is now before the Court on Plaintiff PJ Cotter's
(“Plaintiff”) Emergency Motion for Temporary
Restraining Order and Preliminary Injunction, which was filed
on October 7, 2016 and entered on October 11, 2016. (Doc. #9,
Pl. Br.). Plaintiff's seeks to “stay the
[foreclosure] sale of his property until one or more of the
Defendants can show the Mortgagee is a valid and rightful
holder of his note under Michigan's Uniform Commercial
Code, § 440.1101 et seq.” (Id. at 2).
motion is accompanied by a declaration, wherein Plaintiff
states that on September 27, 2016, Plaintiff was advised that
his property was scheduled for sale on October 13, 2016.
(Decl. at ¶¶ 3-5). Plaintiff further states that on
October 7, 2013, “Stacy of Trott Law, PC confirmed the
sale was set for October 13, 2016.” (Id. at
October 12, 2016, this Court sent an email to Defendants'
counsel, with Plaintiff cc'd, advising that Plaintiff had
filed an emergency motion seeking injunctive relief. The
Court asked Defendants when a response to the motion could be
filed. Defendants have filed a response indicating that the
sale of Plaintiff's property has been adjourned and will
continue to be adjourned throughout the pendency of the
instant case. (Doc. #12). Defendants have further represented
to the Court that the foreclosure sale is not scheduled for
October 13, 2016.
Court shall DENY Plaintiff's motion for two reasons.
First, based upon Defendants' representation that the
sale has been, and will continue to be, adjourned, the Court
finds that Plaintiff's requested relief is moot.
Plaintiff has not demonstrated that he is entitled to a
temporary restraining order and preliminary injunction.
“Temporary restraining orders and preliminary
injunctions are extraordinary remedies designed to protect
the status quo pending final resolution of a lawsuit.”
Richardson v. Wells Fargo Bank, N.A., 2013 WL
3367434, at *2 (E.D. Mich. July 5, 2013). The decision to
grant a temporary restraining order or a preliminary
injunction is a matter within the discretion of the court.
See Certified Restoration Dry Cleaning Network, L.L.C. v.
Tenke Corp., 511 F.3d 535, 540 (6th Cir. 2007).
Plaintiff bears the substantial burden of establishing that
he is entitled to preliminary injunctive relief. Leary v.
Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Such
relief will only be granted where the circumstances clearly
demand it. Overstreet v. Lexington-Fayette Urban County
Gov't, 305 F.3d 566, 573 (6th Cir. 2002).
determining whether to grant a motion for a temporary
restraining order or for a preliminary injunction, the Court
must consider the following factors: (1) whether the movant
has shown a strong likelihood of success on the merits; (2)
whether the movant will suffer irreparable harm if the
injunction is not issued; (3) whether the issuance of the
injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuing the
injunction. Id. at 573.
whether Plaintiff has a strong likelihood of
prevailing on the merits in his complaint, Plaintiff has
advanced an argument that is roughly one page long.
Plaintiff's conclusory position is not accompanied by any
substantive analysis or applicable case law. Plaintiff does
not separately discuss the likelihood of success on the
merits on any one of seven Counts in his complaint. Notably,
“[i]t is not up to the Court to devise a likelihood of
success argument for the Plaintiff that [he has] not
endeavored to develop [himself.]” Koole v. Wells
Fargo Bank, N.A., 2015 WL 3408944, at *3 (E.D. Mich. May
27, 2015). The Court is therefore not persuaded that
Petitioner has satisfied his heavy burden of establishing
entitlement to injunctive relief in this
Plaintiff establish irreparable harm where, as here, the
foreclosure sale will not take place until after the
instant action is closed. As such, there is no imminent
harm here. Moreover, even if the foreclosure of the property
took place, Plaintiff admits that he will have a six-month
redemption period within which to attempt to redeem his
property or make other living arrangements. In light of the
redemption period, courts have determined that irreparable
harm cannot be established.See Livonia Prop. Holdings,
LLC v. 12840-12976 Farmington Road Holdings, LLC, 399 F.
App'x 97, 104 (6th Cir. 2010) (finding that district
court did not clearly err in concluding that the plaintiff
did not face a threat of irreparable harm from impending
foreclosure sale where plaintiff still had the right to
redeem.); see also Sheldon v. Vilsack, 2011 WL