Klimowicz v Deutsche Bank National Trust Company, et al.

Filing 13

District Judge Timothy S Hillman: ORDER entered denying 5 Motion for TRO. (Castles, Martin)

United States District Court
District of Massachusetts
______________________________________________________
)
JEANNE M. KILMOWICZ,
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Plaintiff,
)
)
v.
)
)
)
DEUTSCHE BANK NATIONAL TRUST COMPANY AS
)
INDENTURE TRUSTEE FOR NEW CENTURY HOME EQUITY)
LOAN TRUST 2005-1, and
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CARRINGTON MORTGAGE SERVICES, LLC,
)
Defendant.
)
______________________________________________________ )

CIVIL ACTION
No. 16-40081-TSH

ORDER ON MOTION FOR TRO
June 23 2016

HILLMAN, D.J.

Background
On June 17, 20016, Plaintiff, Jeanne M. Kilmowicz (“Plaintiff”) filed a Complaint
against Deutsche Bank National Trust Company as Indenture Trustee For New Century Home
Equity Loan Trust 2005-1 (“Deutsche Bank”), and Carrington Mortgage Services, LLC (“Carrington”)
alleging claims for wrongful foreclosure, violation of the Massachusetts Consumer Protection
Act, Mass.Gen.L. ch. 93A, breach of the covenant of good faith and fair dealing and negligent
infliction of emotional distress. More specifically, Plaintiff asserts that “Deutsche Bank
wrongfully acquired title to the mortgage of the subject property through a pattern of intentional
fraudulent conduct[, i.e.] the [a]ssignment of a mortgage from a company no longer in existence,

to a mortgage [t]rust that had closed to new mortgages years before the [a]ssignment.”
Complaint, at ¶42. Among the relief sought by the Plaintiff is that this Court vacate and set
aside the Final Judgment of Foreclosure which was entered by the Massachusetts Land Court on
the grounds that the judgment was obtained by fraud and because, under the circumstances,
vacating the judgment is appropriate to accomplish the ends of justice. Plaintiff seeks this relief
in accordance with Massachusetts state law, Mass. R.Civ. P. 60(b). Plaintiff also seeks the entry
of an injunction prohibiting any further post-foreclosure proceedings by any party, the entry of
an injunction prohibiting any further post-foreclosure proceedings including any eviction or
other proceedings related to the property by the Massachusetts Housing Court or any other court
which would command any action on the part of the Plaintiff. Lastly, Plaitniff seeks to be fully
reimbursed for the cost of her home and other compensatory and punitive damages.
This Order addresses Plaintiff’s Motion for Temporary Restraining Order Without Notice
(Docket No. 5).1 Because Plaintiff has failed to show a likelihood of success on the merits, that
motion is denied.
Discussion
In evaluating a motion for a temporary restraining order, the Court considers the same
four factors that apply to a motion for preliminary injunction, that is: the likelihood the movant
will succeed on the merits, whether the movant is likely to suffer irreparable harm in the absence
preliminary relief, the balance of equities, and whether an injunction is in the public interest.
Voice Of The Arab World, Inc. v. MDTV Medical News Now, Inc., 645 F.3d 26, 32 (1st Cir.

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The Court electronically noticed the Plaintiff that a hearing on her motion for a temporary restraining
order (“TRO”) would be held on June 21, 2016 at 10:30 a.m. Shortly thereafter, the Court determined that Plaintiff
had failed to establish that issuance of a TRO without notice would be proper in this case and therefore, directed
Plaintiff to serve notice of the hearing on Defendants “forthwith.” At the hearing, Plaintiff’s counsel represented that
he was not aware of the Court’s order directing that notice be given to the Defendants. A hearing was held in the
absence of the Defendants with the understanding that if the Court were going to consider issuing a TRO, it would
likely hold a further hearing with Defendants present.

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2011).

While all four factors must be weighed, the moving party’s likelihood of success on the

merits is “the touchstone of the preliminary injunction inquiry.” Philip Morris, Inc. v.
Harshbarger, 159 F.3d 670, 674 (1st Cir.1998). “[I]f the moving party cannot demonstrate that
he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.”
Maine Educ. Ass’n, 695 F.3d at 152 (quoting New Comm Wireless Servs., Inc. v. SprintCom,
Inc., 287 F.3d 1, 9 (1st Cir.2002)) (emphasis added).

The moving party bears the burden of

proof for each of these four factors. Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir.
2003).
In this case, Plaintiff, citing a state procedural rule, seeks to have this Court vacate a
judgment of foreclosure entered by a Massachusetts state court. Plaintiff further seeks to have
this Court enjoin the Massachusetts Housing Court from issuing an execution for possession.
First, Plaintiff has not named the Massachusetts Housing Court as a party in in this case and
therefore, despite the relief requested in her Complaint, I assume what she is actually seeking is
an order enjoining the Defendants from moving on the execution for possession, i.e., evicting her
from the residence. Under either scenario, Plaintiff has not cited to any legal authority which
would support her extraordinary request. Moreover, Plaintiff seeks to raise legal issues in this
Court which were either rejected by the state court, or could have been raised in the state court
proceedings. Finally, Plaintiff asserts that the foreclosure was invalid because the mortgage was
not properly assigned to Deutsche Bank, however, Courts have routinely rejected similar
challenges. See Butler v. Deutsche Bank Trust Co. Americas, 748 F3d 28 (1st Cir.
2014)(allegation of robo-signing even if true, does not undermine validity of mortgage
assignment; under Massachusetts law acts of trustee in contravention of trust may be ratified,
and are thus voidable and therefore, mortgagor lacks standing to challenge mortgage holder’s

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possession; noting, without deciding, that vast majority of courts to consider issue have
determined that despite express terms of N.Y. Est. Powers & Trusts Law § 7–2.4, under New
York Law, acts of trustee are voidable not void). For these reasons, I find that Plaintiff has failed
to establish a likelihood of success on the merits and therefore, her request for a TRO is denied.
Conclusion
Plaintiff’s Motion for Temporary Restraining Order Without Notice (Docket No. 5) is
denied.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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