Wiggins v. Nationstar Mortgage LLC et al

Filing 3

ORDER Denying 2 Motion for TRO and Denying 2 Motion for Order to Show Cause. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT L. WIGGINS,
Plaintiff,

Case No. 14-cv-12680
Hon. Matthew F. Leitman

v.
NATIONSTAR MORTGAGE LLC et al.,
Defendants.
_________________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY
RESTRAINING ORDER AND MOTION FOR ORDER
TO SHOW CAUSE (ECF #2)
On July 9, 2014, Plaintiff Robert L. Wiggins (“Wiggins”) filed a Complaint in this
Court. (See Compl., ECF #1.) Wiggins alleges that in 2005 he “refinanced residential
real estate in New Hudson, Oakland County, Michigan.” (Id. at ¶5.) Wiggins says that
the “defendant banks made no effort or attempt to investigate [his] ability to repay the
amounts financed prior to issuing the loan” (id. at ¶7), and that the monthly payments
under his refinanced mortgage are “more than [he] could foreseeably pay.” (Id. at ¶8.)
Wiggins further claims that the Defendants have reneged on a promise “that [Wiggins]
would receive a fixed rate mortgage if he first agreed to accept [an] adjustable rate
mortgage.” (Id. at ¶¶10-11.)
At the same time Wiggins filed his Complaint, he also filed the instant ex parte
Motion requesting a temporary restraining order and an order to show cause (See ECF
#2.) In his Motion, Wiggins asks the Court to enter an order “enjoining a sheriff’s sale

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and enjoining interference with [his] possession of the subject property.” (Id. at 5, Pg. ID
52.)
Federal Rule of Civil Procedure 65 governs motions for temporary restraining
orders. In relevant part, Rule 65 states that a “court may issue a temporary restraining
order without written or oral notice to the adverse party” only when:
(A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made
to give notice and the reasons why it should not be required.
Fed.R.Civ.Proc. 65(b)(1)(A)-(B).

Wiggins has not complied with either of these

requirements. First, on the record currently before the Court, Wiggins has not “clearly
show[n] that immediate and irreparable injury…will result…before the adverse party can
be heard in opposition.” Id. In fact, Wiggins has provided the Court no evidence that
Defendants have scheduled a sheriff’s sale for his property, or even that his property is
currently subject to foreclosure proceedings.1 Simply put, Wiggins has not shown any
need for “immediate” relief, especially before Defendants are served with this action.

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While at one point in his Complaint Wiggins appears to suggest that “foreclosure
proceedings were instituted” (Compl. at ¶31), in other instances, he says only that
Defendant Nationstar Mortgage LLC “is threatening to institute foreclosure
proceedings.” (Id. at ¶¶48, 81.) Wiggins has not provided the Court any evidence
to support a finding that foreclosure proceedings are in fact ongoing or that
Defendants have threatened to take any immediate action against Wiggins or his
property.
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Second, Wiggins has failed to “certif[y] in writing any efforts made to give notice
[of his Motion] and the reasons why it should not be required.”

Fed.R.Civ. Proc.

65(b)(1)(B). In his Complaint, Wiggins alleges that “defendants refused to return [his]
repeated telephone calls, e-mails, and letters in a timely fashion.” (Compl. at ¶30.)
Wiggins makes no effort, though, to link these communications to this Motion, and he
has provided no evidence of any efforts to provide notice of this action or this Motion to
the Defendants. Nor has Wiggins provided any reason why the Court should excuse
notice in this case. Wiggins has thus failed to comply with the applicable federal rules.
Therefore, having reviewed Wiggins’ Complaint and Motion, for all of the reasons
stated above, the Court DENIES Wiggins’ Motion for preliminary and ex parte relief.
Following service of the Complaint on the Defendants, Plaintiff may file a motion for
preliminary injunction.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: July 10, 2014

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on July 10, 2014, by electronic means and/or ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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