Asiel-Dey v. Augusta Mortgage Company et al

Filing 9

ORDER denying 6 Motion for TRO; denying 6 Motion for Preliminary Injunction. Signed by Judge J. Randal Hall on 2/10/2017. (jah)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION NEGUS KWAME FAHIM ASIEL-DEY, aka, Ronnie-Theodis Demmons * * * Plaintiff, * CV 117-020 v, AUGUSTA MORTGAGE COMPANY; * WELLS FARGO BANK, N.A.; UNRUH INVESTMENTS, LLC, * * and Defendants. * ORDER Presently temporary several Based the restraining preliminary challenge before injunction. a order, is Plaintiff's or, (Doc. in 6.) foreclosure on the grounds federal upon laws Plaintiff's Plaintiff is actually execution of a state court. Court DENIES Court related to evidence, requesting dispossessory the motion alternative, Plaintiff that this action it Court successfully to violated practices. appears to a a claims Defendants debt-collection however, for that enjoin brought After carefully reviewing Plaintiff's request, the in the Plaintiff's motion. I. Background On Augusta March 9, Mortgage 2005, Plaintiff signed a promissory Company and offered as collateral note to a security deed in Georgia that his property 30815. his On house at 2907 January would be 5, Arrowwood 2016, auctioned Plaintiff at a Diamond mailed & a Jones, foreclosure "Notice the of proceedings on owner of Plaintiff's mortgage. Investments, LLC purchased of Then, at the Fargo, property Hallinan handling on February 2, Plaintiff's sale Phelan for Wells notice On January 30, to responsible behalf received 2016. Dispute" company Hephzibah, foreclosure Richmond County Courthouse on February 2, Plaintiff Circle, at the N.A., 2016, the the Unruh Richmond County Courthouse during legal hours. The the end foreclosure of retained the of however, was documents indicate that of the property as a tenant not he after The Court makes this inference based upon the fact that Unruh Investments, the property, Plaintiff's story. possession foreclosure. Plaintiff's Magistrate Court LLC filed a Dispossessory Affidavit with of Richmond County, Georgia from the same property on September 1, 2016. no the further documentation detailing for eviction Plaintiff includes proceedings of the dispossessory actions in state court. Plaintiff requesting various restraining the 2017, each Consumer at filed 9:02 for suit in injunctive Defendant recovery a.m. this and Court on statutory "from commencing of Plaintiff the filed February relief, any property." a motion 7, 2017, including action against On for February an 9, emergency temporary restraining order on the basis that he was to be evicted from his property at 9 a.m. that very morning. II. Under Rule 65(b), Discussion a court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only complaint loss, party if "specific clearly or damage can be show will facts that immediate result heard in in an to the affidavit and a verified irreparable movant opposition." or before Fed. R. the Civ. injury, adverse P. 65. Granting a temporary restraining order or preliminary injunction is only four proper if the moving party establishes the following elements: (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. Schmitt v. Reimer, No. Ga. Sept. 14, 2010) 1225-26 (11th Cir. "Both injunctions granted unless 2010 WL 3585187, (quoting Schiavo v. at *1 (S.D. Schiavo, 403 F.3d 1223, 2005)). temporary are l:10-cv-102, restraining extraordinary the movant orders remedies clearly and that preliminary are *not establishes the persuasion as to each of the four prerequisites.'" Redford v. Gwinnett Jud. Cir., 350 F. App'x. to be burden of Id. 341, 345 (quoting (11th Cir. 2009)); see also United States v. Jefferson Cty., 720 F.2d 1511, 1519 (11th Cir. extraordinary movant 1983) and ("The drastic injunction court. is a The matter Jefferson Cty., grant not to be request an Plaintiff has jurisdiction not the for a to enjoin established the as a of discretion to the four preliminary of the temporary restraining fail injunction failed to denial an unless granted is district 720 F.2d at 1519. request for or within Plaintiff s has remedy injunction Aclearly carries the burden of persuasion' prerequisites."). his preliminary two convince Defendants' a sufficient for this reasons. Court actions. order likelihood First, that Second, of and it has Plaintiff success on the merits. A. Jurisdiction The Court first addresses its lack of jurisdiction over the current 405, claim. 410 diverse, Univ. of S. (11th Cir. 1999) . thus the Court Ala, v. Am. Plaintiff must rely jurisdiction to hear the present case. Tobacco and Co., Defendant upon 168 F.3d are not federal-question Plaintiff cites as his federal question hook two sections of the United States Code: 15 U.S.C. that §§ these 1635 claims and are 1692. Plaintiff's inapplicable to problem, the however, action is Plaintiff requests this Court to enjoin. Plaintiff foreclosure of attempts his to house, claim but that the he is challenging documentation he the provided shows that his house has already been foreclosed upon and he is now challenging a state court dispossessory action. § 1635 nor a state dispossessory Section 1635 provides that Plaintiff has action. § 1692 the "right to rescind the following [mortgage] the however, his to by of mortgage the the almost mortgage Practices creditors. Act It has twelve Plaintiff, years vanished and no the third business day [mortgage]." likewise inapplicable. Collection efforts relation to until midnight of rescind Section 1692 is Debt any consummation signed opportunity have But neither ago. 4,352 His days ago. It is a part of the Fair regulates bearing on debt-collection halting a valid state dispossessory action. Plaintiff's interfere with injunction the jurisdiction, not interfere. cannot to valid application subject matter but seeks Plaintiff articulates no however, Univ. of use of request for a temporary not 168 court to Absent law. court Ala., legitimate basis this Court can find none independently. Plaintiff s state this S. federal any only will F.3d at for jurisdiction, Thus, 410. and the Court denies restraining order and preliminary injunction on the grounds that it lacks the power to perform such a request. B. Merits In the alternative, the Court also rejects Plaintiff's motion on the grounds that he will not be sufficiently likely to succeed on the merits as required by Rule 65. Plaintiff's § 1635 claim clearly fails on the merits for reasons discussed above. And Plaintiff's § 1692 claim will likely fail, foremost, because dispossessory it does action. nothing Second, it to fails prevent because first and a state Plaintiff has not provided sufficient proof that Defendant violated its terms. The Court also notes that Wells Fargo foreclosed on Plaintiff over one year ago. Had Plaintiff wished to challenge these not violations, Plaintiff have had he timely had notice should filed and ample arguments. Thus, federal time would also have had time to both a have waited claim, to brief the to the movant Plaintiff before now. Defendants issue. If would The Court sufficiently consider the merits of has also show that immediate and irreparable injury, result until the adverse failed loss, to "clearly or damage will party can be heard in opposition" as required by Rule 65(b)(1)(A). Ill. Because Plaintiff Conclusion has failed to prove this Court has jurisdiction to issue the requested injunction, and because Plaintiff has failed to show a sufficient likelihood of success on the merits, the Court DENIES Plaintiff's motion for injunctive relief. ORDER ENTERED February, at Augusta, Georgia, this (Doc. 6.) /™ day 2017. HONORABLE J. RANDAL HALI UNITE^/ STATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA of

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