Hollowell v. Bornkempt et al

Filing 4

OPINION AND ORDER denying 2 Emergency Motion for Injunctive Relief. Signed by Judge Jon E DeGuilio on 8/10/2017. (Copy mailed to pro se party)(rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRENCE HOLLOWELL
Plaintiff, Pro se,
v.
Joel E. Bornkempt, Timothy D. McKay,
Robert E. Altman III, April N. Pinder,
Phyllis A. Carmer, Bradley C. Crosley of
Reisenfeld & Associates, LPA, LLC;
David J. Jurkeiewicz, Christina M. Bruno or
Bose, McKinney & Evans, LLP; and
Louis Chronowski, Jordan Huttenlocker,
Maria A. Diakoumakis of Dykema Gossett
PLLC,

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Case No. 3:17-CV-606 JD

Defendants.
OPINION AND ORDER
Plaintiff Terrence Hollowell filed a pro se complaint against a number of defendants.
The Complaint was accompanied by an “Emergency Motion for Injunctive Relief” (the
“Motion”), which seeks to enjoin the sheriff’s sale of the subject property.1 Having reviewed the
materials filed by the Plaintiff, the Court DENIES the petition for a temporary restraining order
for the reasons stated below.
BACKGROUND
Plaintiff’s allegations are sparse. The Complaint lists 1314 Hudson Street, Elkhart,
Indiana, as the Plaintiff’s address, but does not allege that that is the subject property. However,
Plaintiff attached a loan modification agreement to his Motion, indicating that 1314 Hudson

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Plaintiff alleges that the sheriff’s sale of the subject property is to be held on August 13, 2017. However,
the Court’s independent research of public records indicates that the sheriff’s sale is scheduled for
September 27, 2017.
http://www.elkhartcountysheriff.com/default/assets/File/All%20Current%20Sales%208-8-17.pdf.

Street is indeed at issue (the “Property”). Apparently, at some point, Plaintiff had obtained a loan
that was securitized into a mortgage-backed security trust on the Property. [Compl. ¶ 16] On
February 29, 2008, the Property was assigned and/or transferred from Mortgage Electronic
Registration System (“MERS”) to Chase Home Finance, Inc. (“Chase”). [Compl. ¶¶ 7-8] When
the Property was assigned to Chase, Plaintiff alleges that there was “no assignment of the Note
with the Deed of Trust.” [Compl. ¶¶ 10, 17] On April 16, 2012, a complaint was filed in Elkhart
County Superior Court to foreclose upon the property. [Compl. ¶ 13] The state court action
resulted in the Property being slated for sheriff’s sale. [Compl. ¶ 18]
DISCUSSION
A. Subject Matter Jurisdiction
Plaintiff asserts claims under federal law: the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq, and the Truth in Lending Act (“TLA”), 15 U.S.C. § 1601
et seq. Accordingly, the complaint raises a question of federal law, and jurisdiction is proper
under 28 U.S.C. § 1331. Furthermore, Plaintiff’s federal claims and his other claims appear to
be part of a common case or controversy, as they all arise from the Defendants’ conduct related
to the transfer of the subject property. Accordingly, this Court has supplemental jurisdiction
over the non-federal claims in this case. Hansen v. Bd. of Trustees of Hamilton Se. Sch. Corp.,
551 F.3d 599, 608 (7th Cir. 2008). With subject matter jurisdiction aside, the Court turns to the
merits of the Plaintiffs’ petition for a temporary restraining order and preliminary injunction.
B. Plaintiffs’ Petition for a Temporary Restraining Order and Preliminary Injunction
The standard for determining whether a temporary restraining order is appropriate is
analogous to the standard applicable when determining whether preliminary injunctive relief is
appropriate. See YourNetDating, Inc. v. Mitchell, 88 F. Supp. 2d 870, 871 (N.D. Ill. 2000). The
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party seeking the temporary restraining order bears the burden of showing that it is “reasonably
likely to succeed on the merits[,] is suffering irreparable harm that outweighs any harm the
nonmoving party will suffer if the injunction is granted, there is no adequate remedy at law, and
an injunction would not harm the public interest.” Joelner v. Vill. of Wash. Park, 378 F.3d 613,
619 (7th Cir. 2004) (stating the standard for a preliminary injunction). If Plaintiff meets this
threshold, the court “weighs the factors against one another in a sliding scale analysis . . . to
determine whether the balance of harms weighs in favor of the moving party or whether the
nonmoving party or public interest will be harmed sufficiently that the injunction should be
denied.” Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir. 2006).
The Court does not find that this standard has been met in this case. First, Hollowell’s
claims are not sufficiently pled in accordance with Fed. R. Civ. P. 12(b)(6), nor is his second
cause of action, fraud, pled with particularity as required by Fed. R. Civ. P. 9(b).
Next, it appears that issuance of a temporary restraining order is barred by the RookerFeldman doctrine. The Rooker-Feldman doctrine precludes federal district courts from
exercising jurisdiction over “cases brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court proceedings commenced and inviting
district court review and rejection of those judgments.” Exxon-Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005).
Although the Plaintiff does not devote significant discussion to the state foreclosure
proceedings in this matter, the Complaint indicates that those matters began with the filing of a
complaint to foreclose upon the subject property on April 16, 2012, in Elkhart County Superior
Court. [Compl. 1 ¶ 13] Both the Complaint and the Motion indicate that a related sheriff’s sale
has been scheduled for the Property. [Compl. ¶ 18; Mot. at 1] Under Indiana law, a sheriff’s sale
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is only scheduled after the entry of a “judgment of foreclosure.” See Ind. Code §§ 32-30-10-5;
32-30-10-8. The Plaintiff’s suit in this Court, at least as far as it attempts to enjoin the sheriff’s
sale, is an attempt to relitigate the merits of the underlying foreclosure action. This Court lacks
the jurisdiction to do so. See Mack v. Am. Nat. Bank of Beaver Dam, No. 10-cv-557, 2010 WL
4365526, at *2–3 (W.D. Wis. Oct. 27, 2010) (denying temporary restraining order in similar case
on Rooker-Feldman grounds).
Finally, Federal Rule of Civil Procedure 65(b)(1)(B) requires that—before a temporary
restraining order may issue without written or oral notice to the adverse party—“the movant’s
attorney certifies in writing any efforts made to give notice and the reasons why it should not be
required.” Although this rule applies on its face to attorneys only, courts across the country have
held pro se litigants who seek a temporary restraining order to the same requirement. See, e.g.,
Duncan v. Quinn, No. 14-CV-01167-MJR, 2014 WL 5543961, at *2 (S.D. Ill. Nov. 3, 2014);
Lescs v. Berkeley Cnty. Sheriffs Office, No. 3:14-cv-96, 2014 WL 4802057, at *2 (N.D. W. Va.
Sept. 23, 2014); Science Sys. & Apps., Inc. v. United States, No. PWG-14-2212, 2014 WL
3672908, at *3 (D. Md. July 22, 2014).
Here there is no indication that the Defendant has been notified of the Plaintiff’s motion
for injunctive relief. The Plaintiff’s petition attaches a signed certificate of service. [Mot. at 3]
The certificate states that “a true and correct copy of the foregoing has been furnished … on the
10th day of August, 2017. [Mot. at 3] However, the Motion and certificate were filed on August
7, 2017. [Mot. at 1] The certificate is therefore deficient on its face; Plaintiff cannot certify
service that hasn’t happened yet. Nothing indicates that Plaintiff made any other efforts to give
the required notice, or why such notice should not be required. Thus, the Plaintiff’s request for a

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temporary restraining order does not comply with Rule 65(b)(1)(B), further justifying denial of
the petition on the current record.
The Court is sympathetic to the circumstances faced by the Plaintiff. However, the
standards for issuance of a temporary restraining order have not been met here. Accordingly, the
“Emergency Motion for Injunctive Relief” is DENIED.
SO ORDERED.
ENTERED: August 10, 2017

/s/ JON E. DEGUILIO
Judge
United States District Court

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