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Abiola v. Select Portfolio Servicing, Inc.

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

December 19, 2017

Akib Abiola, Plaintiff,
v.
Select Portfolio Servicing, Inc., et al., Defendants.

          MONA K. MAJZOUB U.S. MAGISTRATE JUDGE

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

          ARTHUR J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE

         In his Ex Parte Motion for Temporary Restraining Order [Dkt. #5], Plaintiff Akib Abiola asks the Court to enjoin the December 19, 2017[1] sheriff's sale of his home, located at 7548 Promontory Pointe in West Bloomfield, Michigan. The Court spoke with the parties during a status conference on December 14, 2017. For the reasons discussed during the conference and as explained below, Plaintiff's Ex Parte Motion for Temporary Restraining Order [5] is DENIED.

         FACTUAL BACKGROUND

         Sometime in 2001, Plaintiff and his ex-wife, Gerritha, sought to obtain a loan. Due to Plaintiff's debt and problematic financial history, Plaintiff and Gerritha could not qualify for the loan if Plaintiff served as the Borrower.

         On September 11, 2001, Gerritha obtained a $480, 000 stated income loan from North American Mortgage Company (“NMAC”).[2] Gerritha executed a Promissory Note evidencing the debt. Both Plaintiff and Gerritha signed the Note. The Note was secured by a mortgage.

         NMAC approved Gerritha's loan by using the joint financial information of Plaintiff and Gerritha. At the time NMAC evaluated the loan request, Gerritha was a stay-at-home mother, so Plaintiff generated all of their household income.

         NMAC sold the loan to Washington Mutual. Plaintiff and Gerritha entered into a loan modification with Washington Mutual before it shut down in September 2008. Shortly thereafter, Chase purchased all of Washington Mutual's assets, including Plaintiff's loan and/or servicing rights.

         Plaintiff and Gerritha divorced in February 2008. In the divorce and property settlement agreement, Gerritha relinquished her right, title, and interest in the West Bloomfield home.

         During the status conference, Defense counsel stated that in March 2017, Plaintiff contacted Chase for a second loan modification, but ultimately asked to close his application. It is the Court's understanding that Plaintiff has not made any payment since 2009. Plaintiff's current outstanding balance is $452, 331.13. According to Defense counsel, Plaintiff would need to pay more than $500, 000 to settle the balance in full and stop the sheriff's sale. Furthermore, on November 16, 2017, the Honorable Judge Cheryl Matthews, of the Oakland County Circuit Court, denied Plaintiff's request for a temporary restraining order on the ground that he failed to show that he would suffer irreparable harm.

         ANALYSIS

         The Court has discretion in deciding a motion for temporary restraining order. See Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). Federal Rule of Civil Procedure 65 allows the Court to issue a temporary restraining order without notice to the adverse party if 1) the moving party establishes specific facts clearly showing that an immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition to the motion; and 2) counsel for the moving party certifies in writing any efforts made to give notice and the reasons why notice should not be required. Fed.R.Civ.P. 65(b)(1)(A), (B). Also relevant to the Court's decision are the following four factors:

(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of [injunctive relief] would cause substantial harm to others; and (4) whether public interest would be served by issuance of a preliminary injunction.

Summit County Democratic Central and Executive Committee v. Blackwell, 388 F.3d 547, 550 (6th ...


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