Stincer et al v. Home America Mortgage, Inc. et al

Filing 3

ORDER denying Plaintiff's 2 Motion for Preliminary Injunction. Accordingly, because injunctive relief is not available under either the FDCPA or RESPA, Plaintiffs have failed to establish a likelihood of success on their claim for injunctive relief. Signed by Judge Richard W. Story on 5/11/12. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ANILSY STINCER and JUAN
RAMON,
Plaintiffs,
v.
HOME AMERICA MORTGAGE,
INC., MERS, INC.,
WASHINGTON MUTUAL
BANK, N.A., and SHAPIRO &
SWERTFEGER, LLC,

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.
1:12-CV-1647-RWS

Defendants.
ORDER
This case comes before the Court on Plaintiffs’ Motion for Preliminary
Injunction [2]. After reviewing the record and holding a hearing, the Court
DENIES Plaintiffs’ Motion [2] for the reasons that follow:
Plaintiffs filed a Complaint [1] in this action alleging various causes of
action arising out of the foreclosure on Plaintiffs’ home, including causes of
action under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §
1692g, and the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §
2605(e). Plaintiffs now move for a preliminary injunction on the basis of these

AO 72A
(Rev.8/82)

claims, seeking to enjoin the dispossessory action that is scheduled to take place
on Monday, May 14, 2012. (Mem. in Supp. Pls.’ Mot. for Prelim. Inj., Dkt. [21] at 3.)
To be entitled to a preliminary injunction, the moving party must
demonstrate: (1) a substantial likelihood of success on the merits; (2) a
substantial threat of irreparable injury if the injunction is not granted; (3) the
threatened injury to the movant outweighs the damage to the opposing party;
and (4) granting the injunction would not be adverse to the public interest. Four
Seasons Hotels & Resorts v. Consorcio Barr, 320 F.3d 1205, 1210 (11th Cir.
2003). “The preliminary injunction is an extraordinary and drastic remedy not
to be granted unless the movant ‘clearly carries the burden of persuasion’ as to
the four prerequisites.” United States v. Jefferson Cnty., 720 F.2d 1511, 1518
(11th Cir. 1983) (quoting Canal Auth. v. Callaway, 489 F.2d 567, 573 (5th Cir.
1974)).
Plaintiffs have failed to establish a likelihood of success on the merits of
their claim because injunctive relief is not available under the FDCPA or under
RESPA. See Sibley v. Fulton Dekalb Collection Serv., 677 F.2d 830, 834 (11th
Cir. 1982) (providing that equitable relief is not available under FDCPA);
2

AO 72A
(Rev.8/82)

RESPA, 12 U.S.C. § 2605(f)(1) (providing for damages as exclusive remedy for
violations of § 2605(e)). Accordingly, because injunctive relief is not available
under either the FDCPA or RESPA, Plaintiffs have failed to establish a
likelihood of success on their claim for injunctive relief.

SO ORDERED, this 11th day of May, 2012.

________________________________
RICHARD W. STORY
United States District Judge

3

AO 72A
(Rev.8/82)