Winsey v. Nationstar Mortgage LLC

Filing 5

ORDER: Pro se Plaintiff Christine Winsey's Emergency Motion for Temporary Restraining Order and Preliminary Injunction (Doc. # 2 ) is DENIED insofar as it seeks a temporary restraining order. To the extent the Motion requests a preliminary injunction, it is referred to the Honorable Julie S. Sneed, United States Magistrate Judge, for a report and recommendation. Signed by Judge Virginia M. Hernandez Covington on 4/26/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTINE WINSEY,
Plaintiff,
v.

Case No. 8:17-cv-979-T-33JSS

NATIONSTAR MORTGAGE LLC,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
pro se Plaintiff Christine Winsey’s Emergency Motion for
Temporary Restraining Order and Preliminary Injunction (Doc.
# 2), filed on April 26, 2017. Defendant Nationstar Mortgage
LLC has not yet been served, nor made an appearance. For the
reasons below, the Motion is denied insofar as it requests a
temporary restraining order.
Discussion
On April 26, 2017, Winsey filed her Complaint against
Nationstar alleging that Nationstar violated the Fair Debt
Collection Practices Act, breached an agreement between the
parties, violated Florida Statutes section 673.5011, and
violated

Florida

Statutes

section

673.6031.

(Doc.

#

1).

Concomitant with her Complaint, Winsey filed the pending

Motion seeking, in part, an emergency temporary restraining
order that enjoins the sale of her home at a foreclosure sale
scheduled for April 27, 2017. (Doc. # 2 at 4).
A Court may issue a temporary restraining order 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 non-movant;
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). Winsey has made no attempt to
demonstrate a substantial likelihood of success on the merits
of her Complaint. Rather, without citation to authority, she
argues that the threat of losing the home at foreclosure
“reduces the ‘likelihood of success on the merits’ showing
required for a preliminary injunction.” (Doc. # 2 at 4). That
argument is without merit because “[c]ontrolling precedent is
clear that injunctive relief may not be granted unless the
plaintiff establishes the substantial likelihood of success
criterion.” Schiavo, 403 F.3d at 1226.
Furthermore,

“[u]nder

the

Anti–Injunction

Act,

a

district court may not enjoin state proceedings ‘except as
expressly authorized by Act of Congress, or where necessary

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in aid of its jurisdiction, or to protect or effectuate its
judgments.’” Arthur v. JP Morgan Chase Bank, NA, 569 Fed.
Appx. 669, 678 (11th Cir. 2014) (quoting 28 U.S.C. § 2283)).
“The . . . ‘necessary in aid of its jurisdiction’ exception[]
applies in two narrow circumstances: (1) the federal court
gains jurisdiction over res in an in rem proceeding before a
party brings a subsequent state court action; or (2) the
federal court is presented with a similar context,” e.g., the
need to protect an earlier-issued injunction. Id. (citing
Burr & Forman v. Blair, 470 F.3d 1019, 1028-29 (11th Cir.
2006)). “[T]he third exception, known as the “relitigation
exception,” . . . is applicable where subsequent state law
claims ‘would be precluded by the doctrine of res judicata.’
. . . In addition to the existence of a federal judgment,
‘the party seeking the injunction must make a strong and
unequivocal

showing

of

relitigation.’”

Id.

at

678-79

(citations omitted).
In this case, Winsey has failed to demonstrate any of
the three exceptions apply. The Motion does not point to any
act of Congress that would allow for injunctive relief. Id.
(finding

first

exception

not

met

where

party

seeking

injunction failed to cite an act of Congress allowing for
injunctive relief). In addition, the Court is not proceeding

3 

in

rem

as

it

has

not

obtained

jurisdiction

over

res.

Furthermore, Winsey has not pointed to any previously-issued
federal

injunction

that

must

be

protected

against

the

scheduled foreclosure sale. Finally, Winsey has not shown the
existence of a prior federal judgment in her favor. Id. at
678-79 (finding third exception not met where party seeking
injunction failed to point to a federal judgment issued in
its favor). Accordingly, Winsey’s request for a temporary
restraining order is denied. See Dyer v. The Bank of N.Y.
Mellon, No. 5:17-cv-130-Oc-30PRL, 2017 WL 1165552, at *2
(M.D. Fla. Mar. 29, 2017) (denying plaintiff’s request for an
injunction

to

prevent

foreclosure

sale

under

the

Anti-

Injunction Act); Littlejohn v. CitiMortgage, Inc., No. 3:15cv-194-J-34JRK, 2015 WL 789131, at *2 (M.D. Fla. Feb. 24,
2015) (same).
To

the

extent

the

Motion

requests

a

preliminary

injunction, it is referred to the Honorable Julie S. Sneed,
United

States

Magistrate

Judge,

for

a

report

and

recommendation.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Pro se Plaintiff Christine Winsey’s Emergency Motion for

Temporary Restraining Order and Preliminary Injunction (Doc.

4 

# 2) is DENIED insofar as it seeks a temporary restraining
order.
(2)

To

the

extent

the

Motion

requests

a

preliminary

injunction, it is referred to the Honorable Julie S. Sneed,
United

States

Magistrate

Judge,

for

a

report

and

recommendation.
DONE and ORDERED in Chambers in Tampa, Florida, this
26th day of April, 2017.

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