E3A v. Bank of America, NA et al

Filing 8

ORDER Denying 6 Plaintiff's Motion for Temporary Restraining Order. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
E3A, A NON-PROFIT CORPORATION,
Plaintiff,
v

Case No. 13-cv-10277
Hon. Gershwin A. Drain

BANK OF AMERICA, N.A., et al.,
Defendant.
______________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING
ORDER [#6]
I.

INTRODUCTION
Presently before the Court is Plaintiff’s Emergency Motion for Temporary Restraining

Order, filed on February 28, 2013. Plaintiff seeks an order from this Court enjoining state court
eviction proceedings in the 36th District Court, Detroit, Michigan. Plaintiff, E3A, a non-profit
Michigan corporation, filed the instant action against Defendants, Bank of America, N.A. and Bank
of New York, alleging that Defendants breached a Purchase Agreement to purchase property located
at 19311 Woodston Street, Detroit, Michigan (the “Property”).
On January 29, 2013, Defendants filed a Motion to Dismiss. Plaintiff has failed to respond
to this motion and the time for filing a response has expired under this Court’s local rules. See E.D.
Mich. L.R. 7.1(e)(1)(B) (“A response to a dispositive motion must be filed within 21 days after
service of the motion.”). Upon review of Plaintiff’s Motion for Temporary Restraining Order,
Complaint and Defendant’s Motion to Dismiss, the Court concludes that Plaintiff has failed to
establish a likelihood of success on the merits. Thus, the Court denies Plaintiff’s Motion for

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Temporary Restraining Order.
II.

FACTUAL BACKGROUND
On January 3, 2007, Rolondo Campbell (“Campbell”) obtained a loan in the amount of

$371,500.00 from Decision One Mortgage Company that was secured by a mortgage on the
Property. See Def.’s Mot., Ex. A. The Mortgage was recorded with the Wayne County Register of
Deeds on January 22, 2007, in Liber 45865, page 356. Id. Mortgage Electronic Registration
Systems (“MERS”) was designated as the mortgagee. Campbell defaulted on the loan and
foreclosure followed, after which MERS purchased the property at a sheriff’s sale held on October
31, 2007. Id., Ex. B. The sheriff’s deed was recorded with the Wayne County Register of Deeds
on November 17, 2007 in Liber 46864, pages 261-65. Id. On November 15, 2007, MERS quit
claimed the Property to Defendant, Bank of New York, as Indenture Trustee, for the benefit of the
CWABS, Incs. Asset Back Notes, S. Id., Ex. C.
Thereafter, Plaintiff entered into a purchase agreement executed by Campbell and an agent
for Defendant, Bank of America, to buy the Property on September 17, 2009 for the sum of
$83,500.00 via a short sale. Compl., ¶ 5, Ex. A. Campbell is the President of E3A. The Purchase
Agreement indicates that Reginald Perryman of Ritz Realty received earnest money from E3A as
the escrow agent for Bank of America. Id., Ex. B. The purchase agreement contains an addendum
executed by Campbell and Bank of America which states: “Time is of the essence with respect to
all dates specified in the Agreement and any addenda, riders or amendments thereto” and sets
October 15, 2009 as the date by which the sale must occur. Id.
Plaintiff asserts three claims in the Complaint: (1) breach of contract, count I; (2) quiet title,
count II; and (3) unjust enrichment, Count III. Plaintiff claims that E3A paid $10,000.00 in earnest

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money as consideration for the purchase agreement and that Defendants breached the agreement by
failing to close on the sale despite the fact that Plaintiff was ready, willing and able to close with
Defendant at the appointed time. Id., ¶¶ 6-7, 9. Plaintiff further asserts that Defendants have refused
to return the earnest money deposit or consummate the short sale pursuant to the purchase
agreement. Id., ¶ 10.
III.

LAW & ANALYSIS
Temporary restraining orders and preliminary injunctions are extraordinary remedies

designed to protect the status quo pending final resolution of a lawsuit. See University of Texas v.
Camenisch, 451 U.S. 390 (1981). Whether to grant such relief is a matter within the discretion of
the district court. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535,
540 (6th Cir. 2007). The same factors are considered in determining whether to grant a request for
either a temporary restraining order or a preliminary injunction. See Sandison v. Michigan High
School Athletic Assoc., 64 F.3d 1026, 1030 (6th Cir. 1995). The four factors that must be balanced
and considered before the court may issue a temporary restraining order or preliminary injunction
include: (1) the likelihood of the plaintiff’s success on the merits; (2) whether the plaintiff will suffer
irreparable injury without the injunction; (3) the harm to others which will occur if the injunction
is granted; and (4) whether the injunction would serve the public interest. Certified Restoration, 511
F.3d at 542; In re Eagle-Pitcher Industries, Inc., 963 F.2d 855, 858 (6th Cir. 1992); and N.A.A.C.P.
v. City of Mansfield, Ohio, 866 F.2d 162, 166 (6th Cir. 1989).
“None of these factors, standing alone, is a prerequisite to relief; rather, the court should
balance them.” Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996). Preliminary
injunctive relief “is an extraordinary measure that has been characterized as ‘one of the most drastic

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tools in the arsenal of judicial remedies.’” Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001).
It is well settled that, “[a]lthough no one factor is controlling, a finding that there is simply
no likelihood of success on the merits is usually fatal.” Gonzales v. National Bd. of Medical
Examiners, 225 F.3d 620, 625 (6th Cir. 2000). Here, the Court finds that Plaintiff cannot
demonstrate likelihood of success on the merits.
As an initial matter, it would appear that the relief sought here, specifically that the Court
stay the application of a writ of eviction in the 36th District Court, is prohibited pursuant to the AntiInjunction Act. See 28 U.S.C. § 2283 (“A court of the United States may not grant an injunction to
stay proceedings in a State court except as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”); see also Cragin v.
Comerica Mortgage Co., No. 94-2246, 1995 U.S. App. LEXIS 37089, at *1 (6th Cir. Oct. 24, 1995)
(finding that the Anti-Injunction Act “generally precludes federal injunctions that would stay
pending foreclosure proceedings in the state courts.”) However, even if the Anti-Injunction Act
would not serve to prohibit the entry of a temporary restraining order, Plaintiff’s claims are not
likely to succeed on the merits.
A Michigan breach of contract claim requires a party to plead “(1) that there was a contract,
(2) that the other party breached the contract and, (3) that the party asserting breach of contract
suffered damages as a result of the breach.” Miller-Davis Co. v. Ahrens Const., Inc., 296 Mich.
App. 56, 71, 817 N.W.2d 609, 619 (2012). Express provisions for termination govern a contract and
courts cannot create a contractual liability where the express intent of the parties was to terminate
the agreement upon a given condition. See Smeader v. Mason, 341 Mich. 139, 142043, 67 N.W.2d
131, 132-33 (1954). Further, absent ambiguity, contractual interpretation begins and ends with the

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actual words of a written agreement. See Henderson v. State Farm Fire & Cas. Co., 460 Mich. 348,
354; 596 N.W.ed 190 (1999). Thus, unambiguous contract language must be enforced according
to the plan and ordinary meaning of its terms. See Wilkie v. Auto-Owners Ins. Co., 469 Mich. 41,
47, 664 N.W.2d 776 (2004).
Here, it appears unlikely that Plaintiff can succeed on its breach of contract claim. The plain
and unambiguous language in the purchase agreement provides that:
7.

Time of the Essence: Closing Date

(a)

It is agreed that time is of the essence with respect to all dates specified in the
Agreement and any addenda, riders or amendments thereto, meaning that all
deadlines are intended to be strict and absolute. The Agreement shall
terminate automatically, and without notice, if its not concluded by the
Closing Date, or any extension thereof.

(b)

The closing shall take place on or before 10 15 2009, or within five (5)
calendar days of final loan approval by the lender, whichever is earlier
(“Closing Date”), unless the Closing Date is extended in writing signed by
the Seller and the Buyer, or extended by the Seller under the terms of the
Agreement. The closing shall be held in the offices of the Seller’s attorney
or agent, or at a place so designated and approved by the Seller, unless
otherwise required by applicable law. If the closing does not occur (through
no fault of Seller) by the date specified in this Section 7 of this Addendum
or in any extension, the Agreement automatically terminates and the Seller
shall retain any earnest money deposit as liquidated damages.

See Compl., Ex. B at 24. Thus, by the plain terms of the purchase agreement, the agreement
automatically terminated on October 15, 2009 when the closing did not occur by that date. Plaintiff
fails to allege that the parties had agreed to an extension of the closing date, nor has Plaintiff
submitted any documents suggesting that the parties extended the closing date.
Similarly, it does not appear that Plaintiff will succeed on the merits relative to the quiet title
claim. In an action to quiet title, “the plaintiff has the burden of proof and must make out a prima

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facie case of title. Once the plaintiff makes out a prima facie case, the defendants then have the
burden of proving superior right or title in themselves.” Beulah Hoagland Appleton Qualified
Personal Residence Trust v. Emmet Co. Road Comm., 236 Mich. App. 546, 550, 600 N.W.2d 698
(1999). In order to state a claim for quiet title, Plaintiff must allege: “(a) the interest the plaintiff
claims in the premises; (b) the interest the defendant claims in the premises; and (c) the facts
establishing the superiority of the plaintiff’s claim.” M.C.R. 3.411(B)(2). Plaintiff’s Complaint fails
to allege any chain of title giving Plaintiff an interest in the Property, let alone a chain of title that
establishes a superior claim of ownership in Plaintiff’s favor. The basis for this claim is Plaintiff’s
contention that Defendants breached the terms of the purchase agreement, however Plaintiff fails
to allege Plaintiff’s full performance under the purchase agreement. For instance, Plaintiff does not
assert that it tendered the full purchase price to Defendants. Based on the allegations in the
Complaint, the Court cannot conclude that Plaintiff has a likelihood of success on the merits of this
claim.
Lastly, it appears that Plaintiff’s unjust enrichment claim will ultimately be unsuccessful.
Where a contract governs the relationship of the parties, a cause of action for unjust enrichment will
not be recognized. See Joseph v. JPMorgan Chase Bank, No. 12-cv-12777, 2013 U.S. Dist. LEXIS
8285, at *13 (E.D. Mich. Jan. 22, 2013). Here, the purchase agreement governs the parties
relationship, therefore under the plain and unambiguous language, Defendants were authorized to
retain Plaintiff’s earnest money deposit if the closing did not occur by October 15, 2009.
Thus, based on the foregoing, Plaintiff’s entitlement to the extraordinary remedy of a
temporary restraining order has not been demonstrated. The Court is mindful of Plaintiff’s argument
that he will face irreparable harm if the temporary restraining order is not entered, however

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Plaintiff’s motion states only that Defendants will attempt to execute the writ of eviction on or after
Friday, February 28, 2013. Thus, Plaintiff’s open ended assertions do not demonstrate that Plaintiff
will suffer irreparable and imminent injury. Further, Plaintiff does not adequately address the last
two factors this Court must consider, specifically the harm to others and the public’s interest in the
issuance of a temporary restraining order. However, because Plaintiff cannot establish a likelihood
of success on the merits, the extraordinary relief of a temporary restraining order is not justified
under the circumstances.
IV.

CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Temporary Restraining Order [#6] is

DENIED.
SO ORDERED.

Dated: March 1, 2013

s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

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