Mukendi v. Wells Fargo Bank N.A. et al

Filing 5

ORDER denying Plaintiff's 2 Motion for Temporary Restraining Order and/or Preliminary Injunction. Signed by Judge Richard W. Story on 5/8/2013. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHRISTOPHER RAPHAEL
MUKENDI,
Plaintiff,
v.
WELLS FARGO N.A.; BARRETT
DAFFIN FRAPPIER LEVINE &
BLOCK, LLP; COUNTRYWIDE
HOME LOANS, INC.; and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS,
INC.
Defendants.

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CIVIL ACTION NO.
1:13-CV-1436-RWS

ORDER
This case is before the Court on Plaintiff’s Motion for Temporary
Restraining Order and/or Preliminary Injunction [2]. After reviewing the
record, the Court enters the following Order.
Background1
This matter involves real property located at 80 Mountain Court,
Covington, Georgia 30016 (“Property”). To purchase the Property, Plaintiff
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Unless otherwise noted, the facts are taken from Plaintiff’s Complaint [1-1].
At this stage, the Court accepts as true all well-pleaded facts in the Complaint.

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took out a loan and executed a promissory note (“Note”) in favor of
Countrywide Home Loans (“Countrywide”). Plaintiff executed a Security Deed
to secure the loan, which named Countrywide as the Lender and Mortgage
Electronic Registration Systems, Inc. (“MERS’), acting solely as nominee for
Lender and Lender’s successors and assigns, as the Grantee.2 The Security
Deed granted MERS the power of sale if Plaintiff did not meet his obligations
under the Note. It appears that the Security Deed was assigned by MERS to
Wells Fargo. (See Complaint, Dkt. [1-1] ¶ 25.)
Wells Fargo initiated foreclosure proceedings and conducted a
nonjudicial foreclosure sale of the Property. In the motion currently before the
Court, Plaintiff seeks a temporary restraining order (“TRO”) and/or Preliminary
Injunction to prevent his eviction from the Property.
Discussion
I.

Legal Standard - Preliminary Injunctive Relief
To receive preliminary injunctive relief, the moving party must establish

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Plaintiff states in his motion for a TRO that the Security Deed was executed
“in favor of Wells Fargo Bank NA”and that “to the best of Plaintiff’s knowledge and
belief, the loan had continually been with Wells Fargo NA.” (Motion for TRO, Dkt.
[2] ¶¶ 4-5.)
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that: (1) he has substantial likelihood of success on the merits, (2) will suffer
irreparable injury if the relief is not granted, (3) the threatened injury outweighs
the harm the relief may inflict on the non-moving party, and (4) entry of relief
would not be adverse to the public interest. KH Outdoor, LLC v. City of
Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006). “Of these four requisites, the
first factor, establishing a substantial likelihood of success on the merits, is
most important . . . .” ABC Charters, Inc. V. Bronson, 591 F. Supp. 2d 1272,
1294 (S.D. Fla. 2008). Because Plaintiff is appearing pro se, his complaint is
more leniently construed and “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
However, this lenience does not excuse Plaintiff from satisfying the stringent
requirements for preliminary injunctive relief.
II.

Analysis
Plaintiff’s Complaint contains the following counts: (1) Set Aside

Foreclosure Sale, (2) Wrongful Foreclosure Attempt, (3) Breach of Covenant or
Agreement, (4) Negligent Servicing, and (5) Fraud: Misrepresentation Pursuant
to O.C.G.A. § 23-2-52. Having reviewed the Complaint, the Court finds that
Plaintiff has failed to allege sufficient facts to demonstrate a substantial
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likelihood of success on the merits of any of his claims and, moreover, has
asserted legal theories that are without merit. Accordingly, Plaintiff in not
entitled to a TRO or preliminary injunction.
Conclusion
Based on the foregoing, Plaintiff’s Motion for Temporary Restraining
Order and/or Preliminary Injunction [2] is DENIED.

SO ORDERED, this 8th day of May, 2013.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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