United States District Court, E.D. Michigan, Southern Division
Steven Whalen Mag. Judge
OPINION AND ORDER (1) DENYING PLAINTIFF'S
EMERGENCY MOTION FOR PRELIMINARY INJUNCTION (ECF NO.
V. PARKER U.S. DISTRICT JUDGE
action arises out of a residential mortgage foreclosure.
Marlon Hicks, purportedly on behalf of his deceased mother
Zettie Hicks, currently seeks a preliminary injunction to
enjoin his eviction from a foreclosed, unredeemed property.
Upon review, the Court is not persuaded that the issuance of
a preliminary injunction is proper and, therefore, denies
FACTUAL AND PROCEDURAL BACKGROUND
September 28, 2005, Zettie Hicks accepted a $103, 000.00 loan
(the “Loan”) and, as security for the Loan,
executed a promissory note and granted a mortgage (the
“Mortgage”) on the real property at issue located
at 14984 Archdale Street, Detroit, Michigan (the
“Property”). (ECF No. 11, PgID 398; Ex. A,
Mortgage, ECF No. 11-2.) The Mortgage was assigned to
Defendant U.S. Bank National Association, as Trustee for
Residential Asset Mortgage Products, Inc., Mortgage
Asset-Backed Pass-Through Certificates, Series 2005-NC1 (the
“Trustee”) on March 24, 2017. (Ex. B, Assignment,
ECF No. 11-3.) Defendant Ocwen Loan Servicing, LLC (the
“Servicer”) is the servicer for the loan. (ECF
No. 11, PgID 399.)
Hicks defaulted on the Mortgage and the Loan was referred to
foreclosure, with a foreclosure notice first published on
July 30, 2018. (Ex. C, Sheriff's Deed, ECF No. 11-4.) In
accordance with the foreclosure notice, a Sheriff's Sale
took place on August 30, 2018, and Defendant Trustee
purchased the property for $120, 795.52. (Id.) The
redemption period expired on March 1, 2019, and no redemption
February 28, 2019, Marlon Hicks, purportedly on behalf of his
deceased mother Zettie Hicks, commenced a pro se
action in the Wayne County Circuit Court against Defendant
Trustee, Defendant Servicer, and Defendant Potestivo &
Associates, P.C. (“Potestivo”)-the agent for the
foreclosing entity-by filing a Complaint alleging eleven
counts relating to the Loan. (ECF No. 1.) Defendant Potestivo
removed the matter to this Court on April 10, 2019.
(Id.) Both Defendants have filed motions to dismiss
the Complaint. (ECF Nos. 4 & 5.)
eviction proceedings are pending in the Wayne Country 36th
District Court at No. 19347224. (ECF No. 11, PgID 400.) An
order of eviction has been filed. (Ex. D, Eviction Court
Docket, ECF No. 11-5.) Mr. Hicks filed a Motion for Relief of
a Void Judgment Under MCR 2.612(C)(1)(d) and a Motion for
Injunctive Relief and Declaratory Judgment in that case, and
the court denied both without a hearing. (Id.)
Presently before the Court is Mr. Hicks' Emergency Motion
for a Preliminary Injunction. (ECF No. 8.) The motion has
been fully briefed, and the Court held a hearing on Friday,
June 7, 2019.
STANDARD OF REVIEW - PRELIMINARY INJUNCTION
party moves for a preliminary injunction, the district court
considers four factors to determine whether to grant relief:
(1) the likelihood of success on the merits of the action;
(2) the irreparable harm which could result without the
requested relief; (3) the possibility of substantial harm to
others; and (4) the impact on the public interest.
Christian Schmidt Brewing Co. v. G. Heileman Brewing
Co., 753 F.2d 1354, 1356 (6th Cir. 1985).
“Although these four factors must be considered in
assessing a request for preliminary injunction, the four
factors do not establish a rigid and comprehensive test for
determining the appropriateness of preliminary injunctive
relief. Instead, the district court must engage in a
realistic appraisal of all the traditional factors weighed by
a court of equity.” Id.
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.'” Leary v. Daeschner, 228 F.3d
729, 739 (6th Cir. 2000) (quoting Direx Israel, Ltd. v.
Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir.
1991)). The party moving for the injunction has the burden to
show that the circumstances clearly demand it. See
Overstreet v. Lexington-Fayette Urban Cty. Gov't,
305 F.3d 566, 573 (6th Cir. 2002).
the district court must balance and weigh the relevant
preliminary injunction considerations, “a finding that
there is simply no likelihood of success on the merits is
usually fatal.” Gonzales v. Nat'l Bd. of Med.
Exam'rs, 223 F.3d 620, 625 (6th Cir. 2000). Thus,
the court is not required to make specific findings
concerning each of the four factors if fewer factors are
dispositive. In re DeLoreon Motor Co., 755 F.2d
1223, 1229 (6th Cir. 1985).
ANALYSIS - PRELIMINARY INJUNCTION
Hicks seeks a preliminary injunction staying eviction
proceedings. However, he fails to set forth any arguments in
his motion to show that he is likely to succeed on the merits
of any of the alleged causes of action that would entitle him
to such relief. In other words, Mr. Hicks could not evade
eviction even if he prevails on some of his claims as they
would not result in setting aside the foreclosure and
allowing Plaintiffs to regain title to the Property.
Additionally, the Court is in serious doubt as to whether Mr.
Hicks is legally recognized as the personal representative
for the estate of Zettie Hicks and whether he has the right
to litigate this matter pro se on ...