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)

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