Braham v. FREO Florida, LLC et al

Filing 8

ORDER denying 4 Plaintiff's Emergency Motion to stay Writ of Possession. Signed by Judge Charlene Edwards Honeywell on 2/25/2015. (AHH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SIMONE BRAHAM,
Plaintiff,
v.

Case No: 8:15-cv-248-T-36TGW

FREO FLORIDA, LLC, AURORA LOAN
SERVICES, LLC, AURORA BANK FSB,
HOMECOMING FINANCIAL, LLC,
TROY PANTON, GETTI PANTON and
JOHN AND JANE DOE,
Defendants.
___________________________________/
ORDER
This cause comes before the Court upon Plaintiff Simone Braham’s Emergency Motion to
Stay Writ of Possession (Doc. 4). The Court, having considered the motion and being fully advised
in the premises, will now DENY Braham’s Emergency Motion to Stay Writ of Possession.
Proceeding pro se, Braham brought this action on February 5, 2015, asserting a variety of
claims in connection with the allegedly illegal foreclosure of her residence. Doc. 1. In her
emergency motion, filed February 23, 2015, Braham asserts that, on February 6th, a hearing
regarding a writ of possession was held without her knowledge or approval and was attended by
an attorney whom she had previously discharged. See Doc. 4 at 1; see also Freo Florida LLC v.
Simone, Case No. 2013CA-5626 (Circuit Court of Polk County, Florida). 1 Braham adds that,
immediately following this hearing, an alias writ of possession was ordered, the alias writ of

1

The docket for that case is available at https://ori2.polkcounty.net/ct_web1/case_detail.asp?SearchType=Party+Name&ascaseid=478346&ascrttype=CR
.

possession was posted on her door on February 12th, and she was illegally evicted from her
residence on February 16th. She now seeks to stay the alias writ of possession.
DISCUSSION
The Court must deny Braham’s motion for two reasons. First, the Court construes the
motion, which was filed on an emergency basis, as one for a temporary restraining order without
notice, asking the Court to restrain the execution of the alias writ of possession. “The issuance of
a temporary restraining order . . . is an extraordinary remedy to be granted only under exceptional
circumstances.” Cheng Ke Chen v. Holder, 783 F. Supp. 2d 1183, 1186 (N.D. Ala. 2011) (citing
Samson v. Murray, 415 U.S. 61 (1974)). Pursuant to the Federal Rules of Civil Procedure, a
temporary restraining order may be granted without notice only 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.”

Fed. R. Civ. P. 65(b).

Similarly, under the Local Rules, a motion for a temporary restraining order must be supported by
“allegations of specific facts shown in the verified complaint or accompanying affidavits, not only
that the moving party is threatened with irreparable injury, but that such injury is so imminent that
notice and a hearing on the application for the preliminary injunction is impractical if not
impossible.” M.D. Fla. R. 4.05(b)(2). In addition, the motion should contain or be accompanied
by a legal memorandum which addresses the following: the likelihood that the moving party will
ultimately prevail on the merits; the irreparable nature of the threatened injury and the reason that
notice cannot be given; the potential harm that might be caused to the opposing parties or others if
the order is issued; and the public interest, if any. M.D. Fla. R. 4.05(b)(3) and (4).
Here, Braham has failed to show that she is entitled to a temporary restraining order,
because she has not demonstrated that she will suffer an “immediate and irreparable injury,” much

2

less one that is “so imminent that notice and a hearing . . . is impractical if not impossible.” This
is particularly true where the alias writ of possession was authorized by a court of law, after notice
and a hearing, which was attended by Braham’s attorney. 2

Indeed, Braham has not even

specifically identified any injury she would suffer if the Court were to deny her motion. Although
unclear, it appears from Braham’s motion that the alias writ of possession has already been
executed and that she has already been evicted from her residence. If so, then the relief Braham is
seeking through her emergency motion has effectively been mooted.
Second, it appears that this Court lacks subject matter jurisdiction to entertain Braham’s
motion. Braham is essentially asking this Court to overturn the Polk County Circuit Court’s
decision to deny her motion to stay the alias writ of possession. 3 Under the Rooker-Feldman
doctrine, 4 however, this Court cannot review state court final judgments, because “that task is
reserved for state appellate courts or, as a last resort, the United States Supreme Court.” Casale v.
Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009). Indeed, the Rooker-Feldman doctrine applies
squarely to the relief sought in Braham’s motion—she is a “state-court loser[] 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,” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005). To obtain a stay on the alias writ of possession
issued by the Polk County Circuit Court, Braham may seek relief only through the state appellate
process or from the United States Supreme Court. See Casale, 558 F.3d at 1261.

2

Braham contends that she had discharged her attorney. However, no order allowing the attorney
to withdraw has been provided to the Court.
3
Although Braham does not identify this event in her motion, from an independent review of the
docket in the Polk County Circuit Court case, the court notes that on February 6, the Polk County
Circuit Court issued an “Order Denying Defendant’s Motion to Stay Writ of Possession.”
4
See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fid. Trust Co., 263
U.S. 413, 415-16 (1923).
3

Accordingly, it is hereby ORDERED:
1.

Plaintiff’s Emergency Motion to Stay Writ of Possession (Doc. 4) is DENIED.

DONE AND ORDERED in Tampa, Florida on February 25, 2015.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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