Pohl, et al v. US Bank N.A., et al

Filing 8

ORDER denying 3 Emergency Motion for Temporary Restraining Order (TRO) and Preliminary Injunction by Judge Philip A. Brimmer on 8/20/2014.(agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02292-PAB
STANLEY M. POHL,
ZINAIDA Q. POHL,
Plaintiffs,
v.
US BANK N.A., individually in its corporate
capacity,
US BANK as trustee of the Merrill Lynch
First Franklin Mortgage Loan Trust
Asset-Backed Certificates, Series 2007-4
(“TRUST”),
LAWRENCE E. CASTLE, in his corporate
capacity,
LAWRENCE E. CASTLE, in his individual
capacity,
CASTLE LAW GROUP, LLC (formerly Castle
Stawiarski LLC),
MERS, a division of MERSCORP INC.,
CAREN JACOBS CASTLE, attorney for MERS,
partner in the CASTLE LAW GROUP LLC and
Wife to defendant Lawrence E. Castle, in her
corporate and individual capacity,
ROBERT J. HOPP, in his corporate capacity,
ROBERT J. HOPP, in his individual capacity,
DEBRA JOHNSON, PUBLIC TRUSTEE of
Denver County,
SHERIFF ELIAS DIGGINS, County of Denver;
and
DOES 1-20,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Emergency Motion for Temporary

Restraining Order (TRO) And Preliminary Injunction [Docket No. 3] filed by plaintiffs
Stanley M. Pohl and Zinaida Q. Pohl (“plaintiffs”) on August 19, 2014.1 Plaintiffs’ motion
seeks a temporary restraining order (“TRO”) and a preliminary injunction staying an
August 19, 2014 eviction hearing and all future eviction proceedings in U.S. Bank v.
Pohl, Case No. 14C65037 (County Court, Denver, Colorado). This order only
addresses the merits of that portion of plaintiffs’ motion seeking a TRO.
According to plaintiffs, on March 11, 2013, the Denver District Court entered an
order approving the sale of their home. Docket No. 3 at 11, ¶ 15. Plaintiffs originally
brought suit in this Court against defendant U.S. Bank National Association (“U.S.
Bank”) on April 24, 2013, alleging causes of action for breach of contract, wrongful
attempt to take possession of unsecured property, wrongful foreclosure, violation of the
Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq., and quiet title in relation
to the foreclosure and sale of their home.2 See Pohl et al. v. U.S. Bank National
Association et al., (“Pohl I”), Case No. 13-cv-01092-PAB-MJW, Docket No. 1. On
January 10, 2014, defendant U.S. Bank filed a motion to dismiss Pohl I for lack of
prosecution and as discovery sanction, arguing that plaintiffs had failed to serve written
discovery prior to the discovery cutoff date, had failed to appear for noticed depositions,
and had provided untimely and evasive answers to the defendants’ written discovery.
Id. (Docket No. 40 at 5-7). On January 14, 2014, plaintiffs voluntarily dismissed their

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Because plaintiffs are pro se litigants, the Court construes their filing liberally.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
2

A third plaintiff, Prince Song Cambilargiu, was named in the complaint in Pohl I,
but does not appear as a plaintiff in this matter.
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complaint, which, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), was without prejudice. Id.
(Docket No. 45).
On July 26, 2014, plaintiffs received a Demand for Possession. Docket No. 3 at
11, ¶ 15. Then, on August 9, 2014, plaintiffs received a notice to appear in court on
August 19, 2014 for an unspecified proceeding related to a pending action for eviction.
Id. ¶ 20. Plaintiffs indicate that the eviction matter is scheduled for a court trial on
August 26, 2014 at 8:45 a.m. Id. at 18. On August 18, 2014, plaintiffs filed a Motion to
Reopen Case and a Motion for Temporary Restraining Order (“TRO”) in the original
action. Pohl I (Docket Nos. 47-48). On August 19, 2014, plaintiffs withdrew their
motions in the original action, id. Docket No. 49, initiated this action, and filed the
present motion.
The Court first addresses the question of whether plaintiffs are entitled to an ex
parte hearing on their TRO motion. Pursuant to Fed. R. Civ. P. 65(b)(1)(a), a TRO may
only be issued without notice to opposing parties if “specific facts in an affidavit or a
verified complaint clearly show that immediate and irreparable injury, loss, or damage
will result to the movant before the adverse party can be heard in opposition.” Moreover,
Local Rule 65.1 requires that an “unrepresented party” filing a motion for a TRO must
file a certificate that either (1) states that “actual notice of the time of filing the motion,
and copies of all pleadings and documents filed in the action to-date or to be presented
to the court at the hearing” have been provided to counsel for opposing parties, or (2)
describes the efforts made to provide opposing parties with notice and copies of the
required documents. Here, plaintiffs’ affidavit only described efforts to provide notice to
a single defendant, U.S. Bank. Docket No. 3 at 18. Plaintiff provided notice to U.S.
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Bank by mailing a copy of the documents to the attorney who represents U.S. Bank in
the pending eviction proceeding.3 Id. Because plaintiffs neither served all defendants
with actual notice nor described their efforts to do so, they are not entitled to an ex parte
hearing on their motion for a TRO.
The Court will now turn to the merits of plaintiffs’ motion. To justify the issuance
of a preliminary injunction or temporary restraining order, the moving party must show
(1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips
in the movant's favor; and (4) that the injunction is in the public interest. RoDa Drilling
Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 20 (2008)). Plaintiffs fail to establish that immediate
or irreparable injury will result before this matter can be set for a preliminary injunction
hearing. See Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1172 (7th Cir. 1997) (“a
plaintiff who cannot show any irreparable harm at all from the withholding of a
preliminary injunction is not entitled to the injunction however strong his case on the
merits, for he has no need for preliminary relief in such a case, no need therefore to
short circuit the ordinary processes of the law”); see also U.S. Bank N.A. v. Turquoise
Properties Gulf, Inc., 2010 WL 2594866 at *5 (S.D. Ala. June 18, 2010) (denying motion
for TRO where plaintiff “failed to make a sufficient showing of irreparable injury”); Fasi v.
HSBC Bank USA, N.A., No. 12-cv-03290-PAB, 2013 WL 50434 at *3 (D. Colo. Jan. 3,
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On August 20, 2014, the day after they filed this motion, plaintiffs filed proofs of
service of summons on defendants Castle Law Group, LLC, Debra Johnson, and U.S.
Bank. Docket Nos. 5-7. Plaintiff has provided no indication that the remaining
defendants have been served or otherwise put on notice of this motion.
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2013) (where plaintiff fails to demonstrate a likelihood that she will suffer irreparable
harm in the absence of a TRO, “[t]he Court need not reach the other factors of the
inquiry.”).
Before the Court sets this matter for a preliminary injunction hearing, plaintiffs
must provide two things: first, plaintiffs must file proof that they have complied with the
notice requirements of Fed. R. Civ. P. 65(a) and Local Rule 65.1. Second, plaintiffs
must file a brief explaining why their request for a preliminary injunction is not barred by
either the Rooker-Feldman doctrine or the Younger abstention doctrine. The RookerFeldman doctrine “precludes a losing party in state court who complains of injury
caused by the state-court judgment from bringing a case seeking review and rejection of
that judgment in federal court.” Miller v. Deutsche Bank Nat’l Trust Co. (In re Miller),
666 F.3d 1255, 1261 (10th Cir. 2012). As the Tenth Circuit has held, Rooker-Feldman
bars claims that would undo final foreclosure proceedings. Dillard v. Bank of New York,
476 F. App’x 690, 692 n.3 (10th Cir. 2012) (unpublished). Thus, one question that
plaintiffs’ motion raises is whether the injunctive relief that plaintiffs seek would risk
undoing the March 11, 2013 order approving the sale of plaintiffs’ home. The
abstention doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971), prevents a
federal district court from interfering in an ongoing state proceeding. See Gordon v.
Wells Fargo Bank., N.A., No. 11-cv-00123-LTB, 2011 WL 864860 at *2 (D. Colo. March
11, 2011) (declining to enjoin pending eviction proceeding).
Therefore, it is
ORDERED that the portion of Docket No. 3 seeking an Emergency Motion for
Temporary Restraining Order is DENIED.
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DATED August 20, 2014.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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