METELLUS v. BANK OF AMERICA NATIONAL ASSOCIATION et al

Filing 20

ORDER denying 2 Motion for TRO; denying 2 Motion for Permanent Injunction; denying 3 Motion for Hearing. Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 07/20/2015. (mdm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MOISE METELLUS,

:
:
Plaintiff,
:
:
v.
:
:
BANK OF AMERICA, N.A.;
:
MORTGAGE ELECTRONIC
:
REGISTRATION SYSTEM;
:
WELLS FARGO HOME MORTGAGE; :
and MCCALLA RAYMER, LLP,
:
Defendants.
:
:

Case No.: 5:15-CV-0183 (LJA)

ORDER
Before the Court are Plaintiff Moise Metellus’ Motion for Temporary Restraining
Order (“TRO”) (Doc. 2) and Motion for an Emergency Hearing (Doc. 3). Plaintiff seeks to
enjoin Defendants Bank of America, N.A. (“BOA”), Mortgage Electronic Registration
System (“MERS”), Wells Fargo Home Mortgage (“Wells Fargo”), and McCalla Raymer, LLP
(“McCalla Raymer”) from enforcing a Writ of Possession. (Doc. 2 at 1). For the reasons that
follow, Plaintiff’s Motions are DENIED.
BACKGROUND
On May 22, 2015, Plaintiff, proceeding pro se, filed a “Verified Complaint,” alleging
the following claims: (1) breach of contract; (2) breach of covenant of good faith and fair
dealing; (3) fraud and deceit; (4) negligent misrepresentation; (5) wrongful foreclosure; (6)
quiet title; (7) declaratory relief; (8) unfair practices under O.C.G.A § 10-1-393; and (9)
violations of the Real Estate Settlement Procedures Act (“RESPA”). (See Doc. 2).
In the Complaint, Plaintiff alleges that he purchased real property located at 1878
Brackendale Road, Kennesaw, Georgia, on April 21, 2006. (Id. at 2-3). Plaintiff represents
that “the loan was initially serviced by Primary Capital Advisors LLC until early August 2006
and was then serviced by Wells Fargo.” (Id. at 2). According to Plaintiff, BOA and Wells
Fargo agreed to participate in the Home Affordable Modification Program (“HAMP”). (Id.)
HAMP is a federal program implemented by the United States Department of the Treasury
“to assist at-risk homeowners restructure their mortgages to avoid foreclosure.” (Id. at 5).
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Plaintiff alleges that BOA is obligated, under HAMP, to offer a trial modification or
Trial Period Plan (“TTP”) to borrowers when “the value of a performing modified loan
exceeds the value of foreclosing the property.” (Id. at 7). TTP is a three-month period in
which borrowers make mortgage payments based on adjusted loan terms determined by the
lender. (Id.) On August 22, 2009, Plaintiff entered into a TTP agreement with BOA and
Wells Fargo with regard to his loan. (Id. at 8). Plaintiff states that he tendered three mortgage
payments in October 2009, November 2009, and December 2009. (Id.) Plaintiff alleges that
BOA and Wells Fargo breached the TTP contract because they failed to offer Plaintiff a
permanent loan modification and failed to perform their contractual duties. (Id.)
According to Plaintiff, Troy C. Crouse, Vice President of MERS, assigned the
property to BOA on March 17, 2009. (Id.) Plaintiff alleges that the assignment is void
because “the Assignment of Deed of Trust contains a forged signature of Troy C. Crouse.”
(Id.) At some point, Plaintiff defaulted on his loan, and, on May 6, 2014, the property was
sold at a non-judicial foreclosure sale. (Id. at 14). BOA conducted the foreclosure and the
property was sold for approximately $329,000. (Id.) Plaintiff alleges that the foreclosure is
void because BOA failed to provide Plaintiff with notice of the foreclosure. (Id.)
Additionally, Plaintiff contends that the Trustee did not have standing to foreclose the
property. (Id.)
On June 6, 2012, Plaintiff filed a Complaint against BOA and MERS in the United
States District Court for the Northern District of Georgia attempting to stay the imminent
foreclosure. (See Case No. 1:12-CV-1947). In the 2012 Complaint, Plaintiff made allegations
similar to those in the instant complaint, against two of the same Defendants, and regarding
the same property and foreclosure proceeding. See Metellus v. Bank of Am., N.A., No. 1:12CV-01947-CC-GGB, 2012 WL 7763041, at *2 (N.D. Ga. Nov. 2, 2012). BOA and MERS
moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. at 1. The
District Court granted the Motion to Dismiss. See Metellus v. Bank of Am., N.A., No. 1:12CV-01947-CC-GGB, 2013 WL 1129399, at *1 (N.D. Ga. Mar. 19, 2013).
DISCUSSION
As a threshold matter, Plaintiff’s Motions are not properly before the Court.
Although Plaintiff labeled the Complaint as a “Verified Complaint,” Plaintiff failed to verify
the facts therein or include an affidavit as required by Federal Rule of Civil Procedure
65(b)(1)(A). Even if the Motions were properly before the Court, in order to grant injunctive
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relief, “a movant must show: (1) a substantial likelihood of success on the merits; (2)
irreparable harm; (3) that the balance of equities favors granting the injunction; and (4) that
the public interest would not be harmed by the injunction.” Mesa Air Group, Inc., v. Delta Air
Lines, Inc., 573 F.3d 1124, 1128 (11th Cir. 2009) (citing BellSouth Telecomms., Inc. v. MCIMetro
Access Tranmission Servs., LLC, 425 F.3d 964, 968 (11th Cir. 2005)). Because Plaintiff has
failed to file a verified complaint and, as discussed below, because this action does not meet
the standard for a TRO, Plaintiff’s Motions are denied.
The Eleventh Circuit has held that “controlling precedent is clear that injunctive relief
may not be granted unless the plaintiff establishes the substantial likelihood of success
criterion.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir. 2005). Here,
Plaintiff’s claims are likely barred by the doctrine of res judicata. “As a general rule, the
doctrine of res judicata, also called claim preclusion, bars parties from re-litigating matters
that were litigated or could have been litigated in an earlier suit.” Pleming v. Universal-Rundel
Corp., 142 F.3d 1354, 1356 (11th Cir. 1998). The doctrine of res judicata is applicable when
the prior decision (1) was rendered by a court of competent jurisdiction; (2) was final; (3)
involved the same parties or their privies; and (4) involved the same causes of action. See
Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1269 (11th Cir. 2002) (citing In re Piper
Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001)). In the instant action, Plaintiff has filed
a Complaint against BOA, MERS, Wells Fargo, and McCalla Raymer. In the 2012 action,
Plaintiff sued BOA and MERS. Likewise, both suits involve the same loan transaction, TTP
agreement, foreclosure proceeding, and residential property. In fact, the claims alleged in the
instant suit are almost identical to the claims raised in Plaintiff’s 2012 Complaint. See Metellus,
2013 WL 1129399, at *1; Metellus, 2012 WL 7763041, at *2. Under these circumstances,
Plaintiff is unlikely to succeed on the merits of his claims. Accordingly, the Court finds that
Plaintiff has failed to demonstrate a likelihood of success on the merits of his claims.
Furthermore, Federal Rule of Civil Procedure 65(b)(1)(A) provides that “[t]he court
may issue a temporary restraining order [“TRO”] without written or oral notice to the
adverse party or attorney 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 . . . .” The Eleventh Circuit defines irreparable
harm as follows:
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[t]he basis of injunctive relief in the federal courts has always been irreparable
harm and inadequacy of legal remedies. A showing of irreparable harm is the
sine qua non of injunctive relief. The injury must be neither remote nor
speculative, but actual and imminent. An injury is “irreparable” only if it cannot
be undone through monetary remedies. The key word in this consideration is
irreparable. Mere injuries, however, substantial, in terms of money, time and
energy necessarily expended in the absence of a stay, are not enough. . . .
Northeastern Florida Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d
1283, 1285 (11th Cir. 1990) (citations omitted). Plaintiff contends that he will suffer an
irreparable harm because “property is unique and money damages will not make the Plaintiff
whole since we cannot go and re-purchase the exact same property.” (Doc. 2 at 3). Plaintiff
is correct that “[r]eal property and especially a home is unique.” Johnson v. U.S. Dep’t of Agric.,
734 F.2d 774, 789 (11th Cir. 1984). But, under Eleventh Circuit law, “an injunction is limited
to prospective relief.” Alabama v. U.S. Army Corps. of Engineers, 424 F.3d 1117, 1133 (11th Cir.
2005) (citing Dombrowski v. Pfister, 380 U.S. 479, 485 (1965)).
Plaintiff seeks equitable relief to remedy a past violation and alleges that the nonjudicial foreclosure proceeding took place on May 6, 2014. Therefore, the alleged harm has
already occurred. “Where the harm to the movant’s interests has already occurred, that harm
is neither imminent nor irreparable at law and is not the appropriate subject matter for
injunctive relief.” Alabama, 424 F.3d at 1134. Accordingly, the Court finds that Plaintiff has
failed to demonstrate that he will suffer an irreparable harm.
Because the Plaintiff has failed to demonstrate a likelihood of success on the merits
and irreparable harm, the Court finds that Plaintiff is not entitled to injunctive relief.
CONCLUSION
Based on the forgoing, Plaintiff’s Motion for Temporary Restraining Order (Doc. 2)
and Motion for an Emergency Hearing (Doc. 3) are DENIED.
SO ORDERED, this _20th___ day of July, 2015.
/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT

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