Brumfiel v. U.S. Bank, N.A. et al

Filing 9

ORDER Denying as Moot 3 Plaintiffs Ex Parte Application for Temporary Restraining Order and Request for Order to Show Cause Why a Preliminary Injunction Should Not Be Issued Prohibiting Defendant from Selling Real Property Pending Trial, by Judge William J. Martinez on 9/8/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-2453-WJM
LISA KAY BRUMFIEL,
Plaintiff,
v.
U.S. BANK, N.A. trustee, Merrill Lynch / First Franklin Mortgage Loan Trust trustee,
Mortgage Loan Asset Backed Certificates, Series 2007 FF1,
SELECTED PORTFOLIO SERVICING INC.,
BANK OF AMERICA N.A., and
JOHN DOES 1-100,
Defendants.

ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Pro se Plaintiff Lisa Kay Brumfiel (“Plaintiff”) brings this action for quiet title and
slander of title against Defendants U.S. Bank, N.A., Selected Portfolio Servicing Inc.,
and Bank of America N.A. (Compl. (ECF No. 1).) This matter is before the Court on
Plaintiff’s “Ex Parte Application for Temporary Restraining Order and Request for Order
to Show Cause Why a Preliminary Injunction Should Not Be Issued Prohibiting
Defendant from Selling Real Property Pending Trial” (“Motion”). (ECF No. 3.)
Plaintiff’s request for a temporary restraining order is governed by Federal Rule
of Civil Procedure 65(b)(1), which provides:
The court may issue a temporary restraining order without written or oral
notice to the adverse party or its attorney only if:
(A) 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; and
(B) the movant’s attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
Here, Plaintiff seeks a temporary restraining order and a preliminary injunction enjoining
the sale of the property that is the subject of the instant case. (ECF No. 3.) Plaintiff
states that she will suffer irreparable injury if the sale proceeds as scheduled on
September 4, 2014 at 10:00 a.m. (Id. at 1.) However, Plaintiff did not file her Motion
until September 3, 2014 at 5:05 p.m., and the scheduled sale passed bef ore the Court
was able to review and rule on Plaintiff’s Motion. (Id.; see also ECF No. 8 (noting that
the foreclosure sale was completed as scheduled).)
As the sale has already occurred, the Court cannot now enjoin such sale. See
Thournir v. Buchanan, 710 F.2d 1461, 1463 n.2 (10th Cir. 1983) (“If the event sought to
be enjoined has occurred, the applicant has already suffered the harm that she sought
to forestall. At that point, an injunction cannot provide a remedy.”). Therefore, no
immediate injury is pending, the requested remedy is unavailable, and Plaintiff’s Motion
is moot.
In accordance with the foregoing, the Court ORDERS that Plaintiff’s “Ex Parte
Application for Temporary Restraining Order and Request for Order to Show Cause
Why a Preliminary Injunction Should Not Be Issued Prohibiting Defendant from Selling
Real Property Pending Trial” (ECF No. 3) is DENIED AS MOOT.

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Dated this 8th day of September, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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