Winstead v. Emc Mortgage Corporation ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WHEELER R. WINSTEAD, :
:
Plaintiff, : Civil Action No.: 09-0997 (RMU)
:
v. : Re Document No.: 2
:
EMC MORTGAGE :
CORPORATION et al., :
:
Defendants. :
MEMORANDUM OPINION
DENYING THE PLAINTIFF’S MOTION FOR A
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I. INTRODUCTION
This matter comes before the court on the pro se plaintiff’s motion for a temporary
restraining order and preliminary injunction. The plaintiff filed a complaint along with the
instant motion on May 28, 2009, seeking to prevent the defendants from foreclosing on his real
property on June 9, 2009. The plaintiff asserts that the defendants violated the Truth in Lending
Act (“TILA”), 15 U.S.C. §§ 1601 et seq., the Real Estate Settlement Procedures Act (“RESPA”),
12 U.S.C. §§ 2601 et seq., the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692,
and the National Housing Act (“NHA”), 12 U.S.C. §§ 1701 et seq. Defendants NRT Mid-
Atlantic, LLC d/b/a Coldwell Banker Residential Broker (“Coldwell”) and EMC Mortgage
Corporation (“EMC”) filed oppositions to the plaintiff’s motion on June 3, 2009. Because the
court determines that the plaintiff has failed to demonstrate that he is likely to succeed on the
merits of any of his claims, the court denies the motion for injunctive relief.
II. FACTUAL & PROCEDURAL BACKGROUND
The plaintiff is the owner of real property located at 1226 F Street Northeast in the
District of Columbia (“the property”), which he acquired on or about April 25, 2005 after
executing a Deed of Trust in favor of Mortgage Electronic Registration Systems, Inc. Compl. ¶
1; Def. EMC’s Opp’n at 1.1 On September 12, 2008, Diane S. Rosenberg, Mark D. Meyer and
John A. Ansell, III were appointed as Substitute Trustees through a Deed of Appointment of
Substitute Trustees. Def. EMC’s Opp’n at 2. On May 20, 2009, Rosenberg sent the plaintiff a
letter notifying him that the Substitute Trustees intended to sell the property at a public auction
on June 9, 2009 at 10:34 a.m.2 Compl., Ex. 6.
The plaintiff then filed suit and submitted the instant motion on May 28, 2009.3 The
plaintiff asserts that the defendants violated TILA, see Compl. ¶¶ 2-7, RESPA, see id. ¶¶ 8-10,
the FDCPA, see id. ¶ 13(1), and the NHA, see id. ¶ 13(2). Upon receipt of the motion on May
29, 2009, the court set an expedited briefing schedule, and defendants Coldwell and EMC filed
oppositions to the motion on June 3, 2009. The plaintiff did not file a reply in support of the
motion.
1
Because the complaint and request for injunctive relief contain little in the way of factual
background, the court relies in part on the defendants’ factual summaries, which the plaintiff has
not contested.
2
EMC asserts that the Substitute Trustees had previously scheduled the foreclosure sale for
September 16, 2008 and January 21, 2009. EMC cancelled the September 2008 sale, and the
January 2009 sale was cancelled when the plaintiff filed a bankruptcy petition on the day the sale
was to go forward. Def. EMC’s Opp’n at 2.
3
The complaint, not the motion for injunctive relief, contains the plaintiff’s arguments in favor of
injunctive relief, and therefore the court will cite to the complaint throughout this Memorandum
Opinion. See generally Compl.; Pl.’s Mot.
2
III. ANALYSIS
A. Legal Standard for Injunctive Relief
This court may issue interim injunctive relief only when the movant demonstrates “[1]
that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the
absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an
injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365,
374 (2008) (citing Munaf v. Geren, 128 S. Ct. 2207, 2218-19 (2008)). It is particularly important
for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler, 505
U.S. 1084, 1085 (1992) (per curiam). Indeed, absent a “substantial indication” of likely success
on the merits, “there would be no justification for the court’s intrusion into the ordinary
processes of administration and judicial review.” Am. Bankers Ass’n v. Nat’l Credit Union
Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999) (internal quotation omitted).
Moreover, the other salient factor in the injunctive relief analysis is irreparable injury. A
movant must “demonstrate that irreparable injury is likely in the absence of an injunction.”
Winter, 129 S. Ct. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)). Indeed, if a
party fails to make a sufficient showing of irreparable injury, the court may deny the motion for
injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift
Supervision, 58 F.3d 738, 747 (D.C. Cir. 1986). Provided the plaintiff demonstrates a likelihood
of success on the merits and of irreparable injury, the court “must balance the competing claims
of injury and must consider the effect on each party of the granting or withholding of the
requested relief.” Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987). Finally, “courts of
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equity should pay particular regard for the public consequences in employing the extraordinary
remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997). The Supreme Court has observed “that a preliminary
injunction is an extraordinary and drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of persuasion.” Id. Therefore, although the trial
court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted
lightly. In addition, any injunction that the court issues must be carefully circumscribed and
“tailored to remedy the harm shown.” Nat’l Treasury Employees Union v. Yeutter, 918 F.2d 968,
977 (D.C. Cir. 1990).
B. The Court Denies the Plaintiff’s Motion for a
Temporary Restraining Order and Preliminary Injunction
The plaintiff claims that he has satisfied all four prongs required to obtain injunctive
relief. Compl. at 18-19. The defendants retort that the plaintiff has failed to show a likelihood of
success on the merits because, among other reasons, the claims are time-barred, see Def.
Coldwell’s Opp’n at 2-3; Def. EMC’s Opp’n at 4-8, that he will not suffer irreparable injury if
the property is foreclosed on, Def. Coldwell’s Opp’n at 3; Def. EMC’s Opp’n at 8, and that the
balance of the hardships and the public interest factors weigh against injunctive relief, Def.
Coldwell’s Opp’n at 3-4; Def. EMC’s Opp’n at 8-9. The court turns now to the question of
whether the plaintiff has demonstrated a likelihood of success on the merits.
The complaint first asserts that the defendants violated TILA. Compl. ¶¶ 2-7. As
defendant EMC points out, however, see Def. EMC’s Opp’n at 5, TILA contains a statute of
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limitations establishing that “[a]ny [TILA] action . . . may be brought in any United States district
court, or in any other court of competent jurisdiction, within one year from the date of the
occurrence of the violation,” 15 U.S.C. § 1640(e). A violation of TILA occurs no later than the
date of the settlement of the loan. Lawson v. Nationwide Mortgage Corp., 628 F. Supp. 804, 807
(D.D.C. 1986) (citing Postow v. OBA Fed. Sav. & Loan Ass’n, 627 F.2d 1370, 1380 (D.C. Cir.
1980)). In this case, the loan transaction occurred on or about April 25, 2005. See Compl. ¶ 1;
Def. EMC’s Opp’n at 1. Therefore, the plaintiff’s TILA claim appears to be time-barred, 15
U.S.C. § 1640(e), and, consequently, he is not likely to succeed on the merits of that claim, see
Miami Bldg. & Constr. Trades Council v. Sec’y of Def., 143 F. Supp. 2d 19, 25 (D.D.C. 2001)
(holding that because the plaintiff’s claim appeared to be barred by the statute of limitations, the
plaintiffs had failed to demonstrate a likelihood of success on the merits).
The plaintiff next alleges that the defendants violated RESPA. Compl. ¶¶ 8-10.
Defendant EMC claims that like TILA, RESPA contains a one-year statute of limitations. Def.
EMC’s Opp’n at 5. RESPA establishes that “[a]ny action pursuant to the provisions of [12
U.S.C. § 2605, 2607, or 2608] may be brought . . . within 3 years in the case of a violation of [12
U.S.C. § 2605] and 1 year in the case of a violation of [12 U.S.C. § 2607 or 2608] from the date
of the occurrence of the violation.” 12 U.S.C. § 2614. The complaint cites subsections of both
12 U.S.C. § 2605 and 12 U.S.C. § 2607. See Compl. ¶¶ 8-10. Accordingly, the plaintiff’s §
2605 and § 2607 claims appear to have become time-barred in April 2008 and April 2006
respectively. See Simms v. CIT Group/Consumer Fin., 2009 WL 973011, at *5 (W.D. Tenn.
Apr. 9, 2009) (holding that RESPA’s statute of limitations began to run on the date the plaintiff
closed the transaction on her mortgage); Metcalf v. Drexel Lending Group, 2008 WL 4748134, at
5
*3 (S.D. Cal. Oct. 29, 2008) (noting that “[t]ypically, in cases involving loan documents, the
statute [of limitations] begins to run when the documents are signed unless evidence is presented
to override this assumption”) (citing Meyer v. Ameriquest Mortgage Co., 342 F.3d 899, 902 (9th
Cir. 2003)). Therefore, the plaintiff is not likely to succeed on the merits of his RESPA claims.
See Miami Bldg. & Constr. Trades Council, 143 F. Supp. 2d at 25.
Finally, the complaint mentions two other statutes: the FDCPA and the NHA. See
Compl. ¶ 13(1)-13(2). Neither the complaint nor the plaintiff’s motion, however, offers any
explanation as to how the defendants allegedly violated these two statutes.4 Therefore, even
construing the complaint liberally and assuming that the plaintiff has asserted claims under these
statutes, he has failed to establish that he is likely to prevail on either of the claims. See
Mazurek, 520 U.S. at 972 (noting that the moving party carries the burden of justifying, by a
clear showing, his entitlement to injunctive relief). As a result, the court concludes that the
plaintiff is not entitled to injunctive relief, and it need not address the other three factors of the
injunctive relief calculus. See Demjanjuk v. Meese, 784 F.2d 1114, 1117-18 (D.C. Cir. 1986)
(declining to reach the issue of irreparable injury and denying the plaintiff’s request for
injunctive relief because he had failed to demonstrate a likelihood of success on the merits).
4
The complaint merely states:
EMC MORTGAGE VIOALTED [sic] NUMEROUS FEDERAL LAWS
AND STATUTES: 1. Fair Collection Debt Practices Act (FCDPA) [sic] 15
U.S.C. § 1692(d)[;] 2. 12 U.S.C. 1701 x(c)(5) PRE FORECLOSURE
HOMEOWNERSHIP COUNSELLING [sic] NOTICE : imposes a specific
statutory obligation on all creditors across the Unites [sic] States who service
conventional loans, (non federally- insured home loans) that requires the
creditor to send specific notice about access and availability of Home
ownership counselling [sic] to defaulting home owners within 45 days of
home loan payment default.
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IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiff’s motion for a temporary
restraining order and a preliminary injunction. An Order consistent with this Memorandum
Opinion is separately and contemporaneously issued this 5th day of June, 2009.
RICARDO M. URBINA
United States District Judge
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