Fern Gillespie v. Wells Fargo Home Mortgage , 431 F. App'x 304 ( 2011 )

Case: 10-50698 Document: 00511521097 Page: 1 Date Filed: 06/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 27, 2011
No. 10-50698
Summary Calendar Lyle W. Cayce
Clerk
CAROL L. REEVES,
Plaintiff-Appellant
v.
WELLS FARGO HOME MORTGAGE, also known as Kimberly Biery; WELLS
FARGO BANK NATIONAL ASSOCIATION, also known as Scott Holzemiester,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CV-240
Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
Carol L. Reeves appeals the denial of a temporary restraining order
seeking to stop Wells Fargo Home Mortgage and Wells Fargo Bank National
Association (hereinafter collectively referred to as Wells Fargo) from foreclosing
on her home. Wells Fargo contends that we lack jurisdiction to review the
district court’s interlocutory order denying the motion for a temporary
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-50698 Document: 00511521097 Page: 2 Date Filed: 06/27/2011
No. 10-50698
restraining order. In response, Reeves contends that the pro se motion should
have been liberally construed as a motion for preliminary injunctive relief.
The district court’s order denying Reeves’s motion for a temporary
restraining order is not a final order, nor does it come within any of the other
categories that would make it immediately appealable. See In re Lieb, 915 F.2d
180, 183 (5th Cir. 1990). Therefore, we lack jurisdiction to review the district
court’s denial of the motion for a temporary restraining order, and Reeves’s
appeal of that ruling is dismissed for lack of jurisdiction. See Faulder v.
Johnson, 178 F.3d 741, 742 (5th Cir. 1999).
The denial of a preliminary injunction, however, is immediately appealable
if it is related to the substantive issues of the litigation. 28 U.S.C. § 1292(a)(1);
Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). Although the district
court construed the pro se motion as seeking only a temporary restraining order,
Reeves sought relief that, if granted, would have extended beyond the 14-day
limit of a temporary restraining order. See FED. R. CIV. P. 65(b). Thus, the pro
se motion, liberally construed, was also a request for a preliminary injunction,
the denial of which is immediately appealable because it is related to the
substantive issues in the case.
A movant for a preliminary injunction must demonstrate “(1) a substantial
likelihood of success on the merits, (2) a substantial threat that failure to grant
the injunction will result in irreparable injury, (3) the threatened injury
outweighs any damage that the injunction may cause the opposing party, and
(4) the injunction will not disserve the public interest.” Lakedreams, 932 F.2d
at 1107. The decision to deny a preliminary injunction is reviewed for an abuse
of discretion and will be reversed “only under extraordinary circumstances.”
White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989).
Reeves alleged that absent any proof that Wells Fargo was a holder in due
course of the promissory note and deed of trust, it had no legal standing to
foreclose on the property in question. She also alleged that foreclosure was
2
Case: 10-50698 Document: 00511521097 Page: 3 Date Filed: 06/27/2011
No. 10-50698
improper because the note had been rescinded and rendered void by its
separation from the deed of trust. In denying the motion, the district court
concluded that Reeves had failed to show a substantial likelihood of success on
the merits.
To the extent that the district court denied Reeves preliminary injunctive
relief, she has failed to show that it was an abuse of discretion. See id. Reeves
does not reassert her claim that the note had been rescinded, nor does she
dispute the district court’s finding that she had not made a payment on the note
since November 2009. The district court reasoned that Reeves’s suspicion that
Wells Fargo was not the true holder in due course of the note, in light of
documentary evidence to the contrary, was insufficient to relieve her of her
obligation to pay that note. Reeves has failed to provide any law to the contrary.
Further, Reeves acknowledges that she did not cogently articulate her claims
before the district court but argues that “based on the facts as now more clearly
understood and articulated,” she has established a high likelihood of success on
the merits. However, because her contentions that the foreclosure notice was
flawed, that the assignment and transfer of the note and deed of trust to Wells
Fargo was defective, that the undated endorsements were ineffective, and that
there is no proof of a nominee agreement between the original lender and
Mortgage Electronic Registration Systems, Inc. (MERS) were not presented to
the district court, we may not consider them on appeal. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (noting that a party may
not raise a new theory of relief for the first time on appeal). Likewise, to the
extent Reeves relies on documentary evidence that was not before the district
court, such evidence may not be considered on appeal. See Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not
consider new evidence furnished for the first time on appeal and may not
consider facts which were not before the district court at the time of the
challenged ruling.”).
3
Case: 10-50698 Document: 00511521097 Page: 4 Date Filed: 06/27/2011
No. 10-50698
APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION;
AFFIRMED IN PART.
4