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Poindexter v. NationStar Mortgage

United States District Court, E.D. Michigan, Southern Division

June 30, 2017

Karen Poindexter, Plaintiff,
v.
NationStar Mortgage and Petru Pusta, Defendants.

          Stephanie Dawkins Davis United States Magistrate Judge

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER [5]

          Gershwin A. Drain United States District Court Judge

         I. Introduction

         This is mortgage foreclosure case. Plaintiff, who is a disabled, wheelchair-bound individual, requests the Court to temporarily restrain the Defendants from evicting her and her family from their current home. For the reasons that will follow, the Court will DENY Plaintiff's Motion for Ex Parte Temporary Restraining Order [5].

         II. Factual Background

         Many of the facts in this case remain unknown. Plaintiff, Karen Poindexter, is physically disabled. She is diagnosed with Sarcoidosis and Ataxia. According to her doctor, these conditions make her unable to move from her home. Her condition is not likely to improve. Dkt. No. 4, p. 26 (Pg. ID 40). Ms. Poindexter has resided at 13041 Oak Park Blvd. in Oak Park, Michigan since at least 2000. Id., p. 24 (Pg. ID 38). It seems that Ms. Poindexter defaulted on her mortgage and her home was sold via sheriff's deed, on July 26, 2016. Id., p. 16 (Pg. ID 30). On November 11, 2016, Ms. Poindexter requested an occupied conveyance from the U.S. Department of Housing and Urban Development (hereinafter “HUD”). Id., p. 24 (Pg. ID 38).

         There are two defendants in this case: NationStar Mortgage, LLC (hereinafter “NationStar”), the residential mortgage servicer, and Petru Pusta. Dkt. No. 1, pp. 2- 3 (Pg. ID 2-3). Petru Pusta purchased the property from NationStar. Id. p. 2 (Pg. ID 2). According to a judgment entered in Michigan's 45th District Court on June 19, 2017, Petru Pusta “can apply for an order evicting [Ms. Poindexter] if [Ms. Poindexter] does not move out on or before 6/29/17.” On June 19, 2017, Plaintiff filed her Complaint. On June 29, 2017 at 3:50 p.m., Plaintiff filed an Ex Parte Motion for Temporary Restraining Order.

         III. Legal Standard for Temporary Restraining Order

         A district court must assess four factors in deciding whether to issue a preliminary injunction or temporary restraining order: “(1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief.” Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000). “The four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met.” Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 230 (6th Cir. 2003).

         IV. Analysis

         The Complaint asserts two counts against the Defendants: (1) violation of the Real Estate Settlement Procedures Act (“RESPA”) and; (2) breach of contract. Although there is a threat of harm to the Plaintiff, she has not established a substantial likelihood or probability of success on the merits of her claims.

         1. RESPA and 12 C.F.R. § 1024.41

         Plaintiff alleges that the Defendants violated RESPA by failing to engage in loss mitigation efforts to avoid the foreclosure of a HUD-insured single family residence. Dkt. No. 1, p. 3 (Pg. ID 3). Ms. Poindexter bases this claim on 12 C.F.R. § 1024.41, “a regulation promulgated by the Consumer Financial Protection Bureau under the Real Estate Settlement Procedures Act, 12 U.S.C. ...


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