Lafortune et al v. Wells Fargo Bank N.A. et al
Filing
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ORDER denying 1 Verified Motion for Issuance of Emergency Temporary Restraining Order and Imposition to Permanent Injunction to Stay the Sale Scheduled for December 18, 2017. This case is dismissed without prejudice. The Clerk shall close the file. Signed by Judge Timothy J. Corrigan on 12/15/2017. (JJB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MITSOU LAFORTUNE and
DAMOCLES LAFORTUNE,
Plaintiffs,
v.
Case No. 3:17-cv-1397-J-32JBT
WELLS FARGO BANK N.A., as
trustee on behalf of the holder of the
Harborview mortgage loan trust
pass-through certificate, certificate
series 2007-1, SELECT
PORTFOLIO SERVICING INC.,
and ALBERTELLI LAW FIRM,
Defendants.
ORDER
This case is before the Court on pro se Plaintiffs’ “Verified Motion for
Issuance of Emergency Temporary Restraining Order and Imposition to
Permanent Injunction to Stay the Sale Scheduled for December 18, 2017”
(“TRO”) (Doc. 1). On August 16, 2017, the Circuit Court of the Fourth Judicial
Circuit in and for Clay County, Florida entered a Final Judgment of Foreclosure
against Plaintiffs. (Doc. 12 exhibit “A” in case 3:17-cv-1067). Plaintiffs seek a
temporary restraining order and permanent injunction of the forced sale of their
home, which is scheduled to occur on December 18, 2017. Although Plaintiffs
did not file a complaint with their TRO, they do have another case pending that
appears to be of the same subject matter—Lafortune v. Wells Fargo Bank N.A.
et. al., no. 3:17-cv-1067-J-32JBT. In that case, Defendants (who are also the
Defendants in this action) filed a Motion to Dismiss on October 12, 2017. (Doc.
12 in case 3:17-cv-1067). On November 6, 2017, the Court issued an Order
directing the plaintiffs to respond to the motion by November 27, 2017 or it
would be deemed unopposed. (Doc. 15 in case 3:17-cv-1067). Plaintiffs did not
respond.
A temporary restraining order can only be granted if the movant
establishes: “(1) a substantial likelihood of success on the merits; (2) that
irreparable injury will be suffered if the relief is not granted; (3) that the
threatened injury outweighs the harm the relief would inflict on the nonmovant; and (4) that entry of the relief would serve the public interest.” Schiavo
ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005).
Here, Plaintiffs have not demonstrated a likelihood of success on the
merits. Id. The thrust of Plaintiffs’ arguments, in both the TRO and the
complaint in case 3:17-cv-1067, is that Defendants do not have standing to
enforce the note and engaged in unfair lending practices. (See Doc. 1 at 8–13;
Doc. 1 in case 3:17-cv-1067 at 6–13). Unfortunately, because these are claims
that should have been raised during the state court foreclosure action they
cannot be asserted via a collateral attack here. See Baker v. Gen. Motors Corp.,
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522 U.S. 222, 233 (1998) (holding that the Full Faith and Credit clause gives
nationwide force to valid state court judgments); Lozman v. City of Riviera
Beach, 713 F.3d 1066, 1074 (11th Cir. 2013) (stating that the preclusive effect
of a state court judgment in federal court is determined by the rendering state’s
preclusion rules); Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945
So. 2d 1216, 1235 (Fla. 2006) (stating that preclusion bars a subsequent action
for “matters actually raised and determined in the original proceeding and also
to matters which could have properly been raised and determined.”).
Accordingly, it is hereby
ORDERED:
1. Plaintiffs’ Verified Motion for Issuance of Emergency Temporary
Restraining Order and Imposition to Permanent Injunction to Stay the Sale
Scheduled for December 18, 2017 (Doc. 1) is DENIED.
2. This case is DISMISSED without prejudice.
3. The Clerk shall close the file.
DONE AND ORDERED in Jacksonville, Florida at 3:30 PM on this 15th
day of December, 2017.
jb
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Copies:
Counsel of record
Pro se parties
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