Morris v. Wells Fargo Bank, N.A. et al

Filing 20

ORDER denying 15 Motion for temporary restraining order. The Complaint (Doc 1) is STRICKEN. On or before July 31, 2015, Plaintiff may file an Amended Complaint. Signed by Judge Roy B. Dalton, Jr. on 7/9/2015. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GARLAND C. MORRIS,
Plaintiff,
v.

Case No: 6:15-cv-962-Orl-37TBS

WELLS FARGO BANK, N.A.;
DEUTSCHE BANK NATIONAL TRUST
COMPANY; MORTGAGE
ELECTRONIC REGISTRATION;
SYSTEMS, INC.; CITIMORTGAGE,
INC.; and MERSCORP, INC.,
Defendants.
ORDER
This cause is before the Court on Plaintiff’s Motion for Temporary Restraining
Order (Doc. 15), filed July 8, 2015. Upon consideration, the Court finds that the motion is
due to be denied.
BACKGROUND
Plaintiff Garland C. Morris (“Morris”) is the defendant in a foreclosure action
initiated by Defendant Deutsche Bank National Trust Company (“Deutsche Bank”) in the
Ninth Judicial Circuit in and for Orange County Florida (“State Court”) on March 30, 2012,
Case No. 2012-CA-005158-O (“State Action”), which concerns Plaintiff’s home at 1135
Reading Drive in Orlando, Florida (the “Property”). (See Doc. 1-1, pp. 81–111; Doc. 15,
p. 3.) A judicial foreclosure sale of the Property is set for Tuesday, July 14, 2015
(“Foreclosure Sale”). (See Doc. 15, p. 4; see also Doc. 1-1, pp. 39–77.) The matter is
presently before the Court based on Plaintiff’s request that this Court enter emergency
injunctive relief, pursuant to Federal Rule of Civil Procedure 65, to stop the Foreclosure

Sale so that Plaintiff may pursue claims in this Court based on state common law—
including fraudulent misrepresentation, breach of fiduciary duty, civil conspiracy, and
quiet title—and the Real Estate Settlement Procedures Act, 15 U.S.C. § 1641(g)
(“RESPA”), the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”), the Equal
Credit Opportunity Act, 15 U.S.C. § 1691 (“ECOA”), and the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. § 1961 (“RICO”). 1 (See Doc. 15; see also Doc. 1.)
Plaintiff purchased the Property on October 7, 2004. (Doc. 1, ¶ 58.) Less than two
years later, on or about August 3, 2006, he and his former spouse refinanced their loan
on the Property, executing a promissory note for $500,000.00 with their lender, Defendant
Wachovia Mortgage Corporation (“Wachovia”) (see Doc. 15-1, pp. 1–3 (“Note”)), and a
mortgage on the Property to secure the Note (see id. at 4–21 (“Mortgage”)). (See Doc. 1,
¶ 61; Doc. 15, ¶ 5.) The Note and Mortgage required Plaintiff to make monthly payments
of $3,284.00 (“Payment”). (See Doc. 1, ¶ 79.) According to Plaintiff, an assignment of the
Mortgage dated June 21, 2011 from Wachovia to Defendant Mortgage Electronic
Registration Systems (“MERS”) was fraudulently “robo-signed” by Wells Fargo Home
Mortgage (“WFHM”) employee, Ricky L. Thompson for MERS. (See Doc. 15-2
(“Assignment”); see also Doc. 1, ¶¶ 160. 188–94.) Plaintiff alleges that he did not learn of
such fraudulent acts until May of 2015. (See Doc. 1, ¶ 195.)
Plaintiff began to suffer financial hardship starting in 2009 when a mortgage crisis
developed and his wife—who had cosigned the Note and Mortgage—filed for divorce and

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Plaintiff’s 55-page Complaint purports to set forth 27 different state and federal
claims (albeit mis-numbered), and each claim incorporates by reference the first 195
paragraphs of the Complaint. (See Doc. 1.) This is a classic “shotgun pleading” that is
due to be stricken.

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a partition of the Property. (Doc. 1, ¶¶ 66–76.) In 2010 and 2011, his financial hardship
worsened when the divorce caused him to suffer dramatic decreases in his income such
that he could not afford to make the Payment, and the mortgage crisis resulted in a
reduction in the value of the Property below the amount of the Note and Mortgage. (See
Doc. 1, ¶¶ 69–81; Doc. 15, ¶ 6.) Relying on publications that Defendant Wells Fargo Bank,
N.A. (“Wells Fargo”) made available on its website, Plaintiff believed that he qualified for
a HAMP loan modification; accordingly, he began unsuccessful efforts to obtain
modification with WFHM who was the servicer of the Mortgage. (See Doc. 1, ¶ 83–138;
Doc. 15, ¶ 7.)
Deutsche filed the State Action on or about March 30, 2012 “as trustee for HSI
Loan Obligation Trust 2006-2 Mortgage Certificate Series 2006-2” (“Trust”). (See Doc. 1,
¶¶ 101–03; Doc. 1-1, pp. 81–111.) Although Plaintiff’s efforts to obtain a modification with
WFHM were ongoing, the State Court entered a consent final judgment of foreclosure on
April 4, 2014. (Doc. 1, ¶¶ 121; Doc. 1-2, pp. 2–4 (“Judgment”).) Plaintiff alleges that the
Judgment is “invalid” because the State Court identified the Plaintiff as Wells Fargo even
though Deutsch initiated the State Action and Deutsch “continued to be identified” as the
Plaintiff in the “style” of the State Action. (Doc. 1, ¶¶ 121–23.) On July 28, 2014, Deutsch
informed Plaintiff that his request for a loan modification was being denied because his
proposed monthly payment was too low, and WFHM notified him that his modification
request was denied on August 1, 2014. (Id. ¶¶ 129–34.) Plaintiff appealed the decision,
and he was again notified that he did not qualify for a modification, and on January 22,
2015, Deutsche moved to reschedule the foreclosure sale of the Property. (See id.
¶¶ 133–39.) Plaintiff contends that Deutsche and Wells Fargo handling of his loan

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modification requests and their foreclosure practices violated the duties of good faith
owed to Plaintiff and were fraudulent, deceptive, unfair, incompetent, negligent, and
discriminatory (based on his status as a “single white father”). (See id. ¶¶ 143–59.)
STANDARDS
The Court is authorized to issue a temporary restraining order without notice to
adverse parties in very limited circumstances. Fed. R. Civ. P. 65(b); Local Rule 4.05. “A
temporary restraining order may be granted without written or oral notice to the adverse
party or that party's attorney only if: (1) it clearly appears from specific facts shown by
affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage
will result to the applicant before the adverse party or that party's attorney can be heard
in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if
any, which have been made to give the notice and the reasons supporting the claim that
notice should not be required.” Fed. R. Civ. P. 65(b)(1)(emphasis added).
DISCUSSION
The Court must deny Plaintiff’s Motion because it is procedurally defective in that
it is unsupported by a verified complaint or affidavits as required by Local Rules
4.05(b)(2), and Fed. R. Civ. P. 65(b)(1)(A). Furthermore, the Court’s ability to stay a
pending state court proceeding is limited by the Anti–Injunction Act (the “Act”), 28 U.S.C.
§ 2283, which states that “[a] court of the United States may not grant an injunction to
stay proceedings in a State court except as expressly authorized by Act of Congress, or
where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” The
Act is grounded in guarantees of independence between the state and federal systems,
see Leiter Minerals, Inc. v. United States, 352 U.S. 220, 225 (1957), thus courts are

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required to narrowly construe its language. See Smith v. Bayer Corp., 131 S. Ct. 2368,
2371 (2011) (stating that the “Act’s specifically defined exceptions, are narrow and are
not to be enlarged by loose statutory construction”) (citations and internal quotations
omitted).
Based upon the motion and exhibits submitted by Plaintiff, none of the exceptions
to the Act apply to his case, thus the Court is prohibited from enjoining the state court
proceedings. See Gomez v. Bank of Am. Corp., No. 8:15–cv–324–T–33EAJ, 2015 WL
667664, at *2 (M.D. Fla. Feb. 17, 2015) (citing the Act in its decision to reject an
emergency motion to enjoin state court foreclosure sale of home); see also Korman v.
Gray, No. 13-80031-CIV, 2014 WL 3695402, at *1 (S.D. Fla. July 24, 2014). Further, the
unverified Complaint is due to be dismissed due to its impermissible shotgun format. See
Edward v. BAC Home Loans Servicing, L.P., 534 F. App’x 888, 891–92 (11th Cir. 2013)
(affirming dismissal of shotgun wrongful foreclosure complaint); see also Carvel v.
Godley, 404 F. App’x 359, 361 (11th Cir. 2010) (affirming dismissal of shotgun complaint);
Magluta v. Samples, 256 F.3d 1282, 1285 (11th Cir. 2001) (remanding to district court
with instructions to strike shotgun complaint and require the plaintiff to replead).
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Plaintiff’s Motion for Temporary Restraining Order and Supporting
Memorandum of Law (Doc. 15) is DENIED.

2.

The Complaint (Doc 1) is STRICKEN.

3.

On or before July 31, 2015, Plaintiff may file an Amended Complaint in
compliance with the requirements of Federal Rules of Civil Procedure 8, 10,

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and with this Order.
4.

If Plaintiff does not file an Amended Complaint in the time prescribed, this
matter will be CLOSED.

DONE AND ORDERED in Chambers in Orlando, Florida, on July 9, 2015.

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