Luther v. Wells Fargo Bank
MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 2/8/12. (mka)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
JAMES T. LUTHER,
WELLS FARGO BANK,
) Civil Action No. 4:11cv00057
) By: Michael F. Urbanski
United States District Judge
Pro se plaintiff James T. Luther filed a complaint in this action on December 7, 2011,
alleging fraud and violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and the Real
Estate Settlement and Procedures Act, 12 U.S.C. § 2605. On December 22, 2011, Luther filed a
motion for temporary restraining order and preliminary injunction (Dkt. #5), which is currently
before the court. In this motion, Luther asks the court to enjoin the foreclosure of his property
located in Fieldale, Virginia. For the reasons set forth below, plaintiff’s motion is DENIED.
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674,
689-90 (2008)); Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 345 (4th
Cir. 2009), vacated on other grounds and remanded, 130 S. Ct. 2371 (2010), reaff’d in part and
remanded, 607 F.3d 355 (4th Cir. 2010). It is a remedy that is “‘granted only sparingly and in
limited circumstances.’” MicroStrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir.
2001) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 816 (4th Cir.
1991)). Thus, “[a] plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an injunction is in the public
interest.” Winter, 555 U.S. at 20 (citing Munaf, 553 U.S. at 689-90; Amoco Prod. Co. v.
Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12
(1982)); see also Real Truth About Obama, 575 F.3d at 345 (applying the standard for
preliminary injunctions set forth in Winter). A preliminary injunction cannot be issued unless all
four of these elements are met, and “‘[p]laintiff bears the burden of establishing that each of
these factors supports granting the injunction.’”1 Direx Israel, 952 F.2d at 812 (quoting Tech.
Publ’g Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir. 1984); Shaffer v. Globe
Prod., Inc., 721 F.2d 1121, 1123 (7th Cir. 1983)).
Because plaintiff has failed to show irreparable harm in this case, his motion for
preliminary injunction falls short and the court need not analyze the other three required
elements for injunctive relief.
On December 28, 2011, Luther informed the court that defendant had stayed foreclosure
on his property until the litigation has been resolved. Indeed, in its brief in opposition to
plaintiff’s preliminary injunction motion, defendant stated:
Upon receipt of the Complaint, Wells Fargo did instruct its
substitute trustee to halt foreclosure proceedings in order to
evaluate plaintiff’s claims. This temporary cessation, however, is
not a waiver of Wells Fargo’s right to foreclose on the Property or
in any way acquiescence that a TRO or injunction is proper.
The analysis for a motion for preliminary injunction and a request for temporary restraining order is the same. See
Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 422 (4th Cir. 1999); see also Neiswender v. Bank of
Am., No. 09-2595, 2009 WL 1834406, at *1 (N.D. Cal. June 23, 2009) (noting “[a] request for a temporary
restraining order is governed by the same general standards that govern the issuance of a preliminary injunction,”
and ruling on a temporary restraining order by applying the same test adopted in Winter and applied in Real Truth
Mem. in Opp. to Pl.’s Application for TRO & Prelim. Injunction, Dkt. #12, at 2 n.1. So while
defendant labels this as a “temporary cessation” of foreclosure proceedings, defendant is not, in
fact, taking action at this time to foreclose on plaintiff’s property, the very activity plaintiff seeks
to enjoin. The Fourth Circuit has explained that “the required ‘irreparable harm’ must be
‘neither remote nor speculative, but actual and imminent.’” Direx Israel, 952 F.2d at 812
(quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989) and
citing ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987) (“Establishing a risk of
irreparable harm is not enough. A plaintiff has the burden of proving a ‘clear showing of
immediate irreparable injury.’”)). Preliminary injunctions are meant to “protect the status quo
and to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the
court’s ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust
Litig., 333 F.3d 517, 525 (4th Cir. 2003) (citations omitted), abrogation on other grounds
recognized in Bethesda Softworks, LLC v. Interplay Entm’t Corp., No. 11-1860, 2011 WL
5084587, at *2 (4th Cir. Oct. 26, 2011). On this record, the court cannot find that plaintiff is at
risk of actual and imminent harm. Without such a showing, the court cannot grant injunctive
Accordingly, plaintiff’s motion for temporary restraining order and preliminary
injunction (Dkt. #5) is DENIED at this time. Plaintiff may renew his motion in the future if
plaintiff faces the imminent threat of foreclosure during the pendency of this litigation.
Entered: February 8, 2012
/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge