Hammer et al v. Bank of America
Filing
5
ORDER denying 3 Motion for TRO. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 7/25/2013. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID ERIC HAMMER and ANNE
MARIE NEEL HAMMER,
Plaintiffs,
v.
Case No. 8:13-cv-1910-T-33AEP
BANK OF AMERICA,
Defendant.
/
ORDER
This matter comes before the Court pursuant to the
Plaintiffs’ Motion for Temporary Restraining Order (Doc. # 3),
which was filed on July 24, 2013. The Court denies the Motion
for the reasons that follow.
I.
Background
A.
The Hammers’ Lease Agreement
According to the Complaint, the Hammers entered into a
Residential Lease Agreement with Lawrence Malloy to occupy
certain real property in Hillsborough County, Florida located
at 1604 Wallace Road, Lutz, Florida 33549. (Doc. # 1 at ¶ 6).
The lease agreement, dated May 20, 2008, is before the Court.
(Doc. # 1-1).
That document states as to the term of the
Agreement: “Landlord leases to Tenant and Tenant leases from
Landlord the Leased Premises for a term of one month, such
term beginning on May 24, 2008, and ending at 12 o’clock
midnight on June 23, 2008.
Thereafter, this Agreement shall
automatically renew for additional one-month periods, absent
notice by either Party.
If either Party gives notice to the
other Party as provided herein, this Agreement shall terminate
sixty (60) days following the date of receipt of the notice,
and this Agreement shall no longer automatically renew.” (Id.
at 1).
As to the rental payments, the Agreement specifies that
“the rent shall be one thousand dollars per month” but that
“tenant may pay rent by repairing or improving the Leased
Premises, in lieu of making a payment to Landlord.” (Id.).
The Hammers contend that as of May 20, 2008, they have “paid
in
excess
of
$74,000.00
in
maintenance,
repairs,
and
improvements to the Property” and “based on the monthly rental
amount, the prepaid rent (through today) serves to extend the
lease through July 20, 2014.
Hammers are entitled to occupy
the property through and including July 20, 2014.” (Doc. # 1
at ¶¶ 11-12).
B.
Foreclosure and Other State Court Proceedings
The Hammers explain that the Bank foreclosed upon the
property on May 6, 2009, and that Malloy filed a Chapter 7
Bankruptcy case in which he abandoned the property. (Id. at ¶¶
15-16). On May 19, 2009, the State Court issued a Certificate
2
of Title to the Bank as to the property. (Id. at ¶ 21). On
June 11, 2009, the Bank filed a Motion for Writ of Possession
in State Court. (Id. at ¶ 22). On July 10, 2009, the State
Court granted the Motion for Writ of Possession. (Id. at ¶
24).
The Hammers objected and the State Court entered an
Order staying its prior Order granting the Bank’s Writ of
Possession. (Id. at ¶ 25).
The State Court ordered the
Hammers and the Bank to mediate.
(Id. at ¶ 26).
mediation proceedings were not fruitful.
The
The Hammers offered
to purchase the property, but the Bank rejected their offer.
(Id. at ¶¶ 27-29).
The Bank returned to the State Court, which reissued its
Writ of Possession. (Id. at ¶¶ 30-31). The Hammers appealed,
and the Second District Court of Appeals affirmed. (Id. at
¶ 33).
Thereafter, the Bank filed its Second Motion for Writ
of Possession and its Third Motion for Writ of Possession; the
State Court granted both Motions. (Id. at ¶ 35). The Hammers
filed affidavits in opposition to the Bank’s submissions,
which the State Court struck from the record upon the Bank’s
Motion. (Id. at ¶¶ 35-37). On April 25, 2013, the State Court
issued its Fourth Writ of Possession in favor of the Bank.
(Id. at ¶ 37).
The Hammers moved to vacate the Fourth Writ of
Possession, and the State Court denied the Motion. (Id. at
3
¶ 38).
C.
Bankruptcy Filings
On May 5, 2013, Plaintiff Anne Hammer filed a bankruptcy
petition, which stayed the execution of the writs; however,
her petition was dismissed on May 21, 2013. (Id. at ¶ 39). On
June 21, 2013, Plaintiff David Hammer filed a bankruptcy
petition, “which has currently stayed the execution of the
writs.” (Id. at ¶ 40).
D.
The Present Action
On July 24, 2013, the Hammers filed the present action in
which they seek, among other relief, “a judgment of permanent
injunction against the Bank from proceeding further in the
Lawsuit in the Florida State Courts to remove the Hammers from
the Property until the term of the Lease is concluded.” (Id.
at ¶ 62).
The Hammers assert that this “Court has jurisdiction over
this action under 28 U.S.C. §§ 1331, 1337, 1343(a), 1948,
1949, and 1367(a).
The federal questions which arise in this
case fall under 42 U.S.C. §§ 1983 and 1988, the Fifth and
Fourteenth Amendment of the Constitution of the United States
of America, and the National Bank Act.” (Doc. # 1 at ¶ 4).
In count one, the Hammers indicate: “this is an action
against the Bank under the Fourteenth Amendment . . . for
4
relief as provided by 42 U.S.C. § 1983.” (Doc. # 1 at ¶ 44).
In count two, the Hammers seek relief under the federal
Protecting Tenants at Foreclosure Act of 2009.
In count
three, the Hammers seek damages for unjust enrichment.
In conjunction with the filing of their Complaint, the
Hammers also filed a Motion for a Temporary Restraining Order.
(Doc. # 3).
In the Motion, the Hammers request an Order
“restraining Bank of America, its officers, agents, servants,
employees, and attorneys, and all other persons who are in
active concert or participation with them, from taking any
further steps to obtain possession of the real property” as
described in the Complaint. (Id. at 3).
II.
TRO Analysis
A
party
seeking
a
Temporary
Restraining
Order
must
establish: “(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 any harm relief would inflict on the non-movant; and
(4) that entry of relief would serve the public interest.”
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-56
(11th Cir. 2005).
As the Plaintiffs, the Hammers bear the
heavy burden of persuasion as to each factor.
5
Canal Auth. of
Fla. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974).1
A.
Likelihood of Success on the Merits
As explained below, the Court determines that the Hammers
are unlikely to succeed on the merits of any of their claims.
The entry of a TRO is accordingly not warranted.
1.
To
obtain
Section 1983
relief
under
§
1983,
a
plaintiff
must
demonstrate that he was deprived of a federal right by a
person acting under color of state law. Patrick v. Floyd Med.
Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). It has long been
recognized that § 1983 is not a source of substantive federal
rights. Whiting v. Taylor, 85 F.3d 581, 583 (11th Cir. 1996).
Instead, to maintain a § 1983 action, a plaintiff must point
to a violation of a specific federal right. Id. Here, the
Hammers asserts that the Bank violated their Fourth and
Fourteenth Amendment rights.2
Generally, the “under color of state law” requirement
excludes from § 1983’s reach merely private conduct, no matter
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981), the Eleventh Circuit adopted all cases decided by
the Fifth Circuit Court of Appeals prior to the close of
business on September 30, 1981, as binding precedent.
2
The Hammers mention the National Bank Act in the
Complaint, but do not appear to allege that the Bank violated
such Act.
6
how wrongful. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 50 (1999). For the Hammers to bring this § 1983 action
against
the
Bank,
a
private
entity,
the
Hammers
must
demonstrate that the conduct allegedly causing the deprivation
of their Constitutional rights is fairly attributable to the
state. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937
(1982).
Private parties are state actors for § 1983 purposes
“only in rare circumstances.” Harvey v. Harvey, 949 F.2d 1127,
1130 (11th Cir. 1992). For the Bank to be deemed a state
actor, one of the following conditions must be met:
(1) The State coerced or at least significantly
encouraged the action alleged to violate the
Constitution (“State compulsion test”); (2) the
private parties performed a public function that was
traditionally the exclusive prerogative of the State
(“public function test”); or (3) the State had so
far
insinuated
itself
into
a
position
of
interdependence with the [private parties] that it
was
a
joint
participant
in
the
enterprise
(“nexus/joint action test”).
Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001). In the
context of the present suit, it is unlikely that any these
tests for state action can be met. The factual allegations of
the
Complaint
do
not
show
that
the
Bank
performed
a
traditional State function, that the Bank was coerced by the
State in any way, or that the Bank was a joint participant
7
with the State.
Here, the Bank, who owns the real property,
petitioned the State Court for a Writ of Possession, and the
State Court granted the request for a Writ of Possession.
That
decision
was
affirmed
on
appeal.
The
Bank’s
participation in a State Court lawsuit to obtain relief
against the Hammers does not translate into the Bank becoming
a § 1983 state actor. Harvey, 949 F.2d at 1133 (“[U]se of
Courts by private parties does not constitute an act under
color of state law.”).3
The Hammers’ § 1983 claims appear to
be unavailing.
2.
Protecting Tenants at Foreclosure Act of 2009
In count two, the Hammers seek relief pursuant to the
Protecting Tenants at Foreclosure Act of 2009.
However, that
Act “does not create a federal private right of action.”
Sharique v. Fannie Mae, No. 6:10-cv-1032, 2010 U.S. Dist.
3
Furthermore, to the extent that the Hammers seek an
Order prohibiting the State Court from evicting the Hammers
from the property, it appears that the Rooker Feldman Doctrine
bars this Court’s jurisdiction because the Hammers are “statecourt losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of
those judgments.” Hammer v. Haire, 369 F. App’x 989, 991
(11th Cir. 2010)(citing Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005)). Because the Court
does not have access to relevant State Court filings, the
Court cannot make a final determination regarding the
application of the relevant four factors required to apply the
Rooker Feldman Doctrine.
8
LEXIS 100812, at *6 (M.D. Fla. Aug. 19, 2010); see also Dabney
v. Shapiro & Fishman, LLP, No. 3:11-cv-342, 2012 U.S. Dist.
LEXIS 15873, at *4 (M.D. Fla. Jan. 6, 2012)(“Because the PTFA
does not provide a private right of action, this court does
not have jurisdiction over Plaintiff’s claim and it must be
dismissed.”).
Thus, the Hammers also fail to assert a
meritorious claim in count two.
3.
Unjust Enrichment
It is apparent to the Court that none of the federal
claims asserted are meritorious and the Court declines to
address the merits of the state law unjust enrichment claim.
Even if the state law claim had some merit, it is completely
unrelated to relief requested in the TRO Motion.
That is, in
count three, the Hammers request money damages from the Bank
for the improvements that the Hammers allegedly made to the
property.
This claim has no bearing on the request for
injunctive relief contained in the TRO Motion, in which the
Hammers request that this Court bar the Bank from taking
possession of the property.
B.
Irreparable Injury
The Hammers fail to establish that irreparable injury
will befall them absent entry of a TRO.
In fact, the
pleadings, if taken at their word, show that Mr. Hammer’s
9
bankruptcy filing has forestalled the Bank in its efforts to
eject the Hammers from the property.
Thus, it appears that
injunctive relief from this Court is unnecessary and, if
granted, would be redundant due to the ongoing bankruptcy
proceedings.
Thus, the Hammers have failed to meet their
heavy burden as to this factor.
C.
Weighing of the Burdens
The Hammers have failed to address completely the issue
of whether the threatened injury of eviction from the property
outweighs any harm a TRO would inflict on the Bank. Thus, the
Court determines that the Hammers have failed to meet their
burden as to this factor.
D.
Public Interest
Additionally, the Hammers have not addressed whether
barring the Bank from taking possession of the property would
serve the public interest.
Thus, the Court finds that the
Hammers have not met their burden as to this final factor.
E.
Technical Deficiencies
The Court is also justified in denying the Motion because
it fails to comply with the Local Rules and the Federal Rules.
The Motion is not signed by the filing parties as required by
Rule 11 of the Federal Rules of Civil Procedure. Furthermore,
the Motion fails to comply with the detailed requirements set
10
forth in Rule 65(b) of the Federal Rules of Civil Procedure.
III. Conclusion
The Court is ever mindful of the “important distinction
between lack of subject matter jurisdiction and the failure to
state a claim upon which relief can be granted.” Blue Cross &
Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1351 (11th Cir.
1998).
The federal claims asserted in this action, which the
Hammers argue support federal question jurisdiction, are
teetering on the borderline between meritless and patently
frivolous.
See Hagans v. Lavine, 415 U.S. 528, 536 (1976)
(“[F]ederal courts are without power to entertain claims
otherwise within their jurisdiction if they are so attenuated
and unsubstantial as to be absolutely devoid of merit, wholly
insubstantial, obviously frivolous, plainly unsubstantial, or
no longer open to discussion.”)(internal citations omitted);
see also Baker v. Carr, 369 U.S. 186, 199 (1962)(holding that
if jurisdiction is based on a federal question, the plaintiff
must show that he has alleged a claim under federal law that
is not frivolous).
The Court finds that the Hammers are unlikely to succeed
on the merits of their claims, but gives the Hammers the
benefit of the doubt by declining to dismiss the action sua
sponte
for
lack
of
subject
matter
11
jurisdiction
at
this
juncture. In light of the Court’s determination that the
Hammers are unlikely to succeed on the merits of their claims,
and after finding that the Hammers have not met their burden
of demonstrating the other factors required for granting the
extraordinary remedy of a temporary restraining order, the
Court denies the Motion.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
The Motion for Temporary Restraining Order (Doc. # 3) is
DENIED.
DONE and ORDERED in Tampa, Florida, this 25th day of
July, 2013.
Copies to:
All Parties of Record
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?