Mbaku et al v. Bank of America, National Association

Filing 7

ORDER denying 5 plaintiffs' Emergency Motion for Temporary Restraining Order. By Judge Philip A. Brimmer on 1/30/12.(pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-00190-PAB
JOHN M. MBAKU,
LUVIBIDILA JOLIE LUMUENEMO,
Plaintiffs,
v.
BANK OF AMERICA, NATIONAL ASSOCIATION,
as successor by merger to BAC Home Loans Servicing, LP
f/k/a Countrywide Home Loans Servicing LP,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiffs’ Emergency Motion for Temporary
Restraining Order [Docket No. 5] filed on January 30, 2012.
On January 24, 2012, plaintiffs filed a Complaint for Declaratory and Injunctive
Relief [Docket No. 1] in which, among other forms of relief, they requested an injunction
preventing the foreclosure sale of their home on February 1, 2012. In a January 26,
2012 order, see Docket No. 2, the Court noted that, although they mailed their
complaint to defendants, plaintiffs did not, despite the fact that the event they seek to
have enjoined is less than a week away, file a motion for temporary restraining order or
preliminary injunction or provide defendant with notice of any intent to do so. And, to
the extent plaintiff sought an ex parte temporary restraining order, the Court pointed out
to plaintiffs that they had not complied with Federal Rule of Civil Procedure 65(b)(1)(A),
which requires that a request for an ex parte temporary restraining order be supported

by “specific facts in an affidavit or a verified complaint [that] clearly show that immediate
and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition.”
In the present motion, plaintiffs seek an “emergency temporary restraining order
. . . to prevent the wrongful foreclosure sale of the property which is scheduled for
Wednesday, February 1st, 2012.” Docket No. 5 at 2. In their motion, plaintiffs indicate
that a “motion for preliminary injunction pursuant to Fed. R. Civ. P. 65(a)(1) will soon be
filed with this court, and notice will be given to the adverse party giving it ample
opportunity to respond.” Docket No. 5 at 3. Plaintiffs do not explain what injunctive
relief they will seek after February 1, 2012 upon the eventual filing of a motion pursuant
to Rule 65(a)(1). In any event, in light of plaintiffs’ intention to file a separate motion
pursuant to Rule 65(a)(1), it appears that plaintiffs are, by the present motion, seeking
only a temporary restraining order pursuant to Rule 65(b)(1). Plaintiffs, however, still
have failed to support such a motion with “specific facts in an affidavit or a verified
complaint [that] clearly show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in opposition.” Fed. R. Civ.
P. 65(b)(1)(A). Plaintiffs have filed an affidavit in support of their motion, but the
affidavit fails to address why the harm described will occur “before the adverse party
can be heard in opposition to the motion.” As the motion makes clear, plaintiffs have
been aware of the impending foreclosure sale since before December 12, 2011.
Despite plaintiffs’ assertion that they diligently prepared their complaint, see Docket No.
5 at 3, ¶ 10, the Court concludes that waiting more than six weeks from being notified of

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the foreclosure sale weighs against the issuance of an ex parte restraining order.1 See
Wangson Biotechnology Group, Inc. v. Tan Tan Trading Co., Inc., 2008 WL 4239155,
at *6 (N.D. Cal. Sep. 11, 2008) (“[T]he Court finds Wangson’s delay in requesting a
TRO militates against its issuance. Parties spurred on by the threat of or actual
immediate irreparable harm, file for TROs as quickly as possible to head or stave it off.
Here, in stark contrast, Wangson was aware of defendants’ alleged counterfeiting
activities since July 2008, but did not file suit until September 2008.”) (citations omitted).
Moreover, although the plaintiffs contend defendant does not have the right to
foreclose, plaintiffs fail to show that they are entitled to remain in possession, e.g., by
demonstrating that they are not in default on the loan. See Docket No. 1 at 8, ¶ 32 (“In
or around January 2009, after struggling to keep their payments current, Plaintiffs fell
behind, and their loan went into default.”).2 Under the relevant Colorado statutory

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As the Court noted in its previous order, plaintiffs have the name and contact
information of defendant’s local counsel. They fail to explain why they have not
provided even oral notice of the present motion to defendant. See Fed. R. Civ. P.
65(b)(1)(B); cf. D.C.COLO.LCivR 7.1A (“The court will not consider any motion, other
than a motion under Fed. R. Civ. P. 12 or 56, unless counsel for the moving party or a
pro se party, before filing the motion, has conferred or made reasonable, good-faith
efforts to confer with opposing counsel or a pro se party to resolve the disputed matter.
The moving party shall state in the motion, or in a certificate attached to the motion, the
specific efforts to comply with this rule.”); D.C.COLO.LCivR 65.1A.2 (providing that
Local Rule 7.1A applies to motions for temporary restraining order).
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In claim twelve of their complaint, see Docket No. 1 at 26, plaintiffs allege a
violation of 12 U.S.C. § 2701 et seq., contending that they are entitled to emergency
mortgage relief. Plaintiffs do not identify this as a basis supporting issuance of a
temporary restraining order. See Docket No. 5 (limiting the alleged violation supporting
a temporary restraining order to defendant’s lack of standing to institute foreclosure
proceedings). Furthermore, plaintiffs have not identified what provision of the statutory
sections cited they would be entitled to enforce. To the extent plaintiffs were attempting
to assert a claim pursuant to the Home Affordable Modification Program (“HAMP”), see
Docket No. 1 at 5, ¶ 24
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provision, one who claims to be entitled to foreclose on a debt may do so “without the
original evidence of debt,” “without the original recorded deed of trust or a certified copy
thereof,” and “without the proper indorsement or assignment of an evidence of debt.”
Colo. Rev. Stat. § 38-38-101(2). Because defendant was not required to produce such
evidence, plaintiffs fear that defendant has no legal authority to foreclose on their
property. However, plaintiffs do not contend that, if an entity with undeniable legal
standing to foreclose had initiated the foreclosure proceedings, they would be permitted
to stay in their home. And, upon foreclosing without the aforementioned forms of
evidence, defendant was “deemed to have agreed to indemnify and defend any person
liable for repayment of any portion of the original evidence of debt in the event that the
original evidence of debt is presented for payment.” Colo. Rev. Stat. § 38-38-101(2);
see Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008) (“Our
frequently reiterated standard requires plaintiffs seeking preliminary relief to
demonstrate that irreparable injury is likely in the absence of an injunction.”) (emphasis
in original). In light of that indemnification, plaintiffs do not risk being responsible to a
party other than defendant for the original debt and, therefore, any harm that would flow
from such a party seeking to recover from plaintiff is not irreparable. See San Luis
Valley Ecosystem Council v. U.S. Fish and Wildlife Service, 657 F. Supp. 2d 1233,
1242 (D. Colo. 2009) (finding that the harm identified by plaintiffs was “not irreparable in
that it can be compensated by money damages”). By so finding, the Court does not

; see also 12 U.S.C. § 5219, “[f]ederal courts . . . have uniformly held that HAMP does
not create a private right of action.” Gretsch v. Vantium Capital, Inc., 2011 WL
6754079, at *2 (D. Minn. Dec. 23, 2011).
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reach any of plaintiffs’ other damage requests or imply that there are no potential
remedies for individuals who suffer foreclosure at the hands of an incorrect entity.
Rather, without some specific basis to believe that plaintiffs are entitled to remain in
possession of their home,3 the Court concludes that the identified harm resulting from
the foreclosure sale does not support the issuance of a temporary restraining order
under the circumstances in this case.
Therefore, it is
ORDERED that plaintiffs’ Emergency Motion for Temporary Restraining Order
[Docket No. 5] is DENIED.

DATED January 30, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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In their complaint, plaintiffs allege that they will be able to demonstrate that the
true holders of the loans have been compensated in the amount of the loan “by
insurance proceeds, money from various guarantors, by the investors, and/or by the
federal government.” Docket No. 1 at 13, ¶ 75. Even assuming this could be
interpreted as alleging that plaintiffs are somehow not in default of their loan
obligations, the Court does not find that this single speculative allegation in plaintiff’s
unverified complaint is sufficient to support the issuance of a temporary restraining
order. Nor does the Court believe that a hearing on that issue is required. Cf. Bradley
v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175-76 (3d Cir. 1990) (noting that Fed. R.
Civ. P. 65(a) “does not make a hearing a prerequisite for ruling on a preliminary
injunction,” and that a hearing “would not be necessary if the movant is proceeding on a
legal theory which cannot be sustained,” “if the facts are undisputed and the relevant
factual issues are resolved,” or “when the movant has not presented a colorable factual
basis to support the claim on the merits or the contention of irreparable harm.”).
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