Gabriel v. Wachovia et al

Filing 6

ORDER The Court construes Plaintiffs Motion to Stay Case as a Motion toWithdraw his Emergency Motion. As so construed, the Court GRANTSPlaintiffs Motion to Stay Case; To the extent Plaintiffs Motion to Stay Case can be interpreted as a motion to form ally stay this action, the Court DENIES the 3 Motion to Stay; Plaintiffs Ex Parte Motion for Emergency Preliminary Injunction and/or Temporary Restraining Order ECF No. 1 , is DENIED WITHOUTPREJUDICE as WITHDRAWN; by Judge William J. Martinez on 1/20/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-00106-WJM
JESSE GABRIEL,
Plaintiff,
v.
WACHOVIA,
WELLS FARGO, and
DOUGLAS COUNTY PUBLIC TRUSTEE,
Defendants.

ORDER DENYING EX PARTE MOTION FOR EMERGENCY PRELIMINARY
INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER
WITHOUT PREJUDICE AS WITHDRAWN

This matter is before the Court on (1) Plaintiff Jesse Gabriel’s Complaint and Ex
Parte Motion for Emergency Preliminary Injunction and/or Temporary Restraining Order
(“Emergency Motion”), filed on January 18, 2012 (ECF No. 1), and (2) Plaintiff’s Motion
to Stay Case (“Motion to Stay”), filed on January 19, 2012 (ECF No. 3). This action was
reassigned to the undersigned on January 20, 2012. (ECF No. 5.)
In the Emergency Motion, Plaintiff, appearing pro se, explains that he recently
learned that Defendants will soon attempt to foreclose (allegedly wrongfully) on his
property located at 13084 Mercury Drive, Littleton, CO, 80124. (ECF No. 1.)
Specifically, in an attachment to the Emergency Motion, Plaintiff states, “As this is an
emergency, I hope that it can be seen by a judge as soon as possible. (The sale date
of the house commences at 10:00 am this morning.)” (Id. at 10.) In Plaintiff’s

accompanying Information for Temporary Restraining Order, Plaintiff states, “Plaintiff
has only found out that sale would happen in the last five days” and “Defendants have
neglected to stop or postpone foreclosure sale set for Wednesday [January] 18, 2012.”
(ECF No. 2, at 2.)
Then, the next day (January 19, 2012), Plaintiff filed his Motion to Stay. (ECF
No. 3.) In the Motion to Stay, Plaintiff states,
Comes now; Jesse Gabriel (Pro Se) to move this Honorable Court to stay
proceedings in this case . . .
4. The sale of the house was not conducted on Wednesday the 18th.
5. This gives the plaintiff time to have complaint reviewed, checked for
accuracy and possibly amended, or to hire an attorney to represent the
plaintiff.
6. Plaintiff does not want to waste court time, when there is still a
possibility of a workout [presumably, with Defendants], or modification
[presumably, of the loan]. . . .
With the instances stated above, Plaintiff requests a stay in the case until
a later time when the case filed will be appropriate, and the complaint can
be reviewed (and possibly amended).
(ECF No. 3.)
Given Plaintiff’s representations in his Motion to Stay that currently he does not
seek to move forward with his previously filed Emergency Motion, and given the
implication that currently there are not legitimate grounds to move forward with the
Emergency Motion, the Court construes Plaintiff’s Motion to Stay as a Motion to
Withdraw his Emergency Motion.
In accordance with the foregoing, the Court ORDERS as follows:

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1.

The Court construes Plaintiff’s Motion to Stay Case as a Motion to
Withdraw his Emergency Motion. As so construed, the Court GRANTS
Plaintiff’s Motion to Stay Case (ECF No. 3);

2.

To the extent Plaintiff’s Motion to Stay Case can be interpreted as a
motion to formally stay this action, the Court DENIES the motion. The
Court does not find it appropriate to stay the action at this time;

3.

Plaintiff’s Ex Parte Motion for Emergency Preliminary Injunction and/or
Temporary Restraining Order (ECF No. 1) is DENIED WITHOUT
PREJUDICE as WITHDRAWN; and

4.

Plaintiff is DIRECTED to serve a copy of his summons, complaint and
motions on all Defendants as soon as practicable, but in no event later
than February 17, 2012.

Dated this 20th day of January, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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