WIDEMAN v. BANK OF AMERICA NA et al
Filing
12
ORDER denying 10 Motion for TRO. Ordered by Judge C. Ashley Royal on 3/9/2012. (ssh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
SHEILA WIDEMAN,
Plaintiff,
v.
BANK OF AMERICA N.A.,
MCCURDY & CANDLER, LLC,
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, and UNKNOWN
DEFENDANTS 1‐10,
Defendants.
)
)
)
)
)
) Case No. 3:12‐cv‐6 (CAR)
)
)
)
)
)
)
)
ORDER ON MOTION FOR
TEMPORARY RESTRAINING ORDER
Currently before the Court is yet another attempt by Plaintiff Sheila Wideman to
enjoin Defendants from evicting her from her property. See Wideman v. Bank of
America, 3:11‐CV‐145 (CAR) (case dismissed on December 23, 2011). Plaintiff has filed
the current Motion for Temporary Restraining Order [Doc. 10] seeking to enjoin
Defendants from enforcing the Writ of Possession granted to Defendant Federal
National Mortgage Association (“Fannie Mae”) in August 2011, and affirmed by the
Walton County Superior Court in October, 2011. For the following reasons, Plaintiff’s
Motion is DENIED.
1
BACKGROUND
On July 5, 2011, after Plaintiff defaulted on the terms of her mortgage and
security deed, Defendant Bank of America foreclosed on Plaintiff’s property pursuant to
the terms of the Security Deed. Thereafter, Defendant Bank of America deeded the
property to Defendant Fannie Mae. Plaintiff did not vacate the property, and Fannie
Mae filed an eviction action in the Magistrate Court of Walton County to obtain
possession of the property. After a hearing, the magistrate issued Fannie Mae a Writ of
Possession. Plaintiff appealed the writ to the Superior Court of Walton County. The
Superior Court affirmed the writ, and Plaintiff did not prevail on the appeal of that
decision.
On October 7, 2011, Plaintiff filed her first complaint in this Court seeking to
enjoin her eviction and alleging various causes of action centered around Plaintiff’s
allegations that Defendants have engaged in deceptive mortgage loan servicing and
unlawfully foreclosed on her property. This Court dismissed that complaint on
December 23, 2011. See Civil Action No. 3:11‐CV‐145 (CAR). Ten days before this
Court dismissed that previous action, on December 13, 2011, Plaintiff filed a nearly
identical action in Walton County Superior Court, and Defendants removed that case
this Court. It is this case which is currently before the Court. Defendants have filed a
motion to dismiss, and Plaintiff has filed a motion to amend her complaint, both of
2
which are currently pending. Because Plaintiff faces an immediate physical lockout
from her property by the Sheriff of Walton County pursuant to orders issued by the
state court, Plaintiff has now filed this Motion for Temporary Restraining Order seeking
to enjoin the eviction.
DISCUSSION
As Defendants point out in their response, this Court is barred from granting
Plaintiff’s injunction request by the federal Anti‐Injunction Act, 28 U.S.C. § 2283. As
this Court noted in its Order dismissing Plaintiff’s previous action, injunctive relief
claims against state court eviction proceedings are barred by the Anti‐Injunction Act
unless they fall within one of three exceptions: (1) the injunction is expressly authorized
by an Act of Congress, (2) the injunction is “necessary in aid of [the court’s]
jurisdiction,” or (3) the injunction is necessary “to protect and effectuate [the court’s]
judgment.” 28 U.S.C. § 2283. This is an “absolute prohibition against enjoining State
Court proceedings, unless the injunction falls within one of the three specifically
defined exceptions.” Atlantic Coast Line R. Co. v. Bhd. of Locomotive Engineers, 398
U.S. 281, 286 (1970). None of the three exceptions apply here, and therefore this Court
cannot enjoin the state court from enforcing any judgment in an action for eviction. See,
e.g., Boross v. Liberty Life Ins. Co., No. 4:10‐cv‐144, 2011 WL 2945819 (S.D. Ga. Jul. 21,
2011) (holding Anti‐Injunction Act barred plaintiff’s request to enjoin eviction
3
proceeding); and Farrell v. Poythress, No. 1:10‐CV‐1309, 2010 WL 2411502 at *2 (N.D.
Ga., May 11, 2010) (Anti‐Injunction Act barred plaintiff’s request to enjoin enforcement
of eviction action).
Moreover, the Motion must be denied because Plaintiff fails to give or even offer
the security required by Federal Rule of Civil Procedure 65(c). That rule states: “The
court may issue a preliminary injunction or a temporary restraining order only if the
movant gives security in an amount that the court considers proper to pay the costs and
damages sustained by any party found to have been wrongfully enjoined or
restrained.” Fed. R. Civ. P. 65(c) (emphasis supplied). Plaintiff does not deny that she
has failed to make payments in accordance with the loan she signed and has made no
offer to tender the required security. See Jackman v. Hasty, No. 1:10‐SC‐2485, 2011 WL
854878 at *1 (N.D. Ga., March 8, 2011) (temporary restraining order denied where
plaintiff failed to offer the security required under Fed. R. Civ. P. 65(c)).
For the foregoing reasons, Plaintiff’s Motion for a Temporary Restraining Order
[Doc. 10] is DENIED.
SO ORDERED, this 9th day of March, 2012.
S/ C. Ashley Royal
C. Ashley Royal
United States District Judge
4
SSH
5
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?