Koole et al v. Wells Fargo Bank, N.A.

Filing 12

ORDER denying 8 Motion for TRO. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANNY KOOLE, an individual,
and STACI KOOLE,
Case No. 14-13976
Plaintiffs,
Paul D. Borman
United States District Judge

v.
WELLS FARGO BANK, NA,
Defendant.
______________________________/

ORDER DENYING PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER OR, IN THE ALTERNATIVE,
FOR A PRELIMINARY INJUNCTION (ECF NO. 8)
This matter is before the Court on Plaintiffs Danny and Staci Koole’s Motion
for a Temporary Restraining Order or, In the Alternative, for Preliminary Injunction
Enjoining Foreclosure Sale. (ECF No. 8.) Defendant Wells Fargo Bank N. A.
(“Wells Fargo”) has filed a response (ECF No. 11) and the Court held a telephonic
hearing on the matter on May 15, 2015. For the reasons that follow, the Court
DENIES the motion for preliminary injunctive relief.
I.

BACKGROUND
Plaintiffs filed this Complaint in Genesee County Circuit Court on August 25,

2014, alleging wrongful foreclosure (Count I), breach of contract (Count II) and
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fraudulent misrepresentation (Count III). Wells Fargo removed the case to this Court
on October 15, 2014. (ECF No. 1 Notice of Removal and Complaint.) The Court
issued a Scheduling Order on December 22, 2014, setting forth a discovery cutoff date
of March 6, 2015, and a dispositive motion deadline of May 8, 2015. (ECF No. 6,
Civil Case Management and Scheduling Order.)
On May 5, 2015, after the close of discovery and just days before the
dispositive motion deadline, Plaintiffs filed an Emergency Motion for Temporary
Restraining Order or, In the Alternative, for a Preliminary Injunction Enjoining
Foreclosure Sale. (ECF No. 8.) Plaintiffs’ motion asserted that a foreclosure sale was
scheduled for May 6, 2015, although the motion attached no exhibits whatsoever that
would indicate this to be the case, or that would even indicate that foreclosure by
advertisement of their property had been initiated. The Court held a telephonic status
conference with the parties on May 5, 2015, during which Wells Fargo agreed to
maintain the status quo with respect to Plaintiffs’ property. The Court issued an Order
that same day reflecting what had occurred during the May 5, 2015, telephonic
conference and set May 15, 2015, for a follow up telephonic conference to take up the
merits of the motion for a temporary restraining order. (ECF No. 9, Order.) On May
14, 2015, Wells Fargo filed its response to the motion for a temporary restraining
order. (ECF No. 11.) On May 15, 2015, the telephonic hearing took place as
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scheduled. The Court learned at the hearing that Plaintiffs last made a payment on
their Loan sometime in 2010. For the reasons that follow, the Court DENIES
Plaintiffs’ motion for injunctive relief.
II.

STANDARD OF REVIEW
A preliminary injunction is “an extraordinary remedy that may only be awarded

upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 22 (2008) (citation omitted). Plaintiff
bears the burden of demonstrating entitlement to preliminary injunctive relief and the
burden is substantial. Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Such
relief will only be granted where “the movant carries his or her burden of proving that
the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban County
Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). When considering a motion for injunctive
relief, the Court must balance the following factors: (1) whether the movant has a
strong likelihood of success on the merits, (2) whether the movant would suffer
irreparable injury absent preliminary injunctive relief, (3) whether granting the
preliminary injunctive relief would cause substantial harm to others, and (4) whether
the public interest would be served by granting the preliminary injunctive relief.
Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535,
540 (6th Cir. 2007). “These factors are not prerequisites, but are factors that are to be
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balanced against each other.” Overstreet, 305 F.3d at 573. “The proof required for
the plaintiff to obtain a preliminary injunction is much more stringent than the proof
required to survive a summary judgment motion.” Leary, 228 F.3d at 739. Plaintiff
must do more than just “create a jury issue,” and must persuade the court that it has
a likelihood of succeeding on the merits of its claims. Id. “This is because the
preliminary injunction is an extraordinary remedy involving the exercise of a very farreaching power, which is to be applied only in [the] limited circumstances which
clearly demand it.” Id. (internal quotation marks and citation omitted) (alteration in
original). “Although no one factor is controlling, a finding that there is simply no
likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Medical
Examiners, 225 F.3d 620, 625 (6th Cir. 2000). These same factors are considered in
evaluating whether to issue a temporary restraining order. Ohio Republican Party v.
Brunner, 543 F.3d 357, 361 (6th Cir. 2008).
Plaintiff must demonstrate that it is likely to suffer irreparable harm in the
absence of an injunction. See Winter, 555 U.S. at 22 (“Our frequently reiterated
standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable
injury is likely in the absence of an injunction. . . . Issuing a preliminary injunction
based only on a possibility of irreparable harm is inconsistent with our
characterization of injunctive relief as an extraordinary remedy that may only be
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awarded upon a clear showing that the plaintiff is entitled to such relief.”) (emphasis
in original) (internal citations omitted). “The ‘key word’ in determining the extent of
an injury sufficient to support the award of injunctive relief is ‘irreparable.’ Mere
injuries, however substantial, are not enough. Rather, ‘the harm alleged must be both
certain and immediate, rather than speculative or theoretical.’” Hudson v. Caruso, 748
F. Supp. 2d 721, 730 (W.D. Mich. 2010) (quoting Michigan Coalition of Radioactive
Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991)).
III.

ANALYSIS
Although discovery in this case is complete, Plaintiffs’ motion attaches no

affidavits or other documentary evidence to support the claim that they are entitled to
the extraordinary remedy of injunctive relief. The Complaint itself attached no
exhibits and offers little in the way of detail that would enable the Court to determine
to any reasonable degree of certainty whether Plaintiffs have a substantial likelihood
of succeeding on the claims set forth in the Complaint. Defendant’s Response
attaches some documents, including the Note, Mortgage and a series of forbearance
agreements and loan modifications and related correspondence.1
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Many of these documents, although not attached to the Complaint, are referred to in the Complaint
and are central to the claims in Plaintiffs’ Complaint. Accordingly, the Court may consider such
documents, and any matters of public record that pertain to the allegations of Plaintiffs’ Complaint,
many of which are attached to Defendant’s response, without converting the motion to one for
summary judgment. See Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999);
Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007).
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Taking together the allegations of the Complaint and the documents submitted
by Defendant in response to Plaintiffs’ motion for injunctive relief, documents which
were either referred to in the Complaint or are central to the claims in the Complaint,
the following facts appear uncontested. On August 23, 2008, Plaintiffs obtained a
mortgage loan (“the Loan”) from Metro Finance in the amount of $123,972.00
evidenced by a Note dated August 23, 2008. (Compl. ¶ 3; Def.’s Resp. Ex. A, Note.)
As security for repayment of the Note, Plaintiff executed a Mortgage (“the
Mortgage”). (Def.’s Resp. Ex. B, Mortgage.) The Mortgage was recorded with the
Genesee County Register of Deeds on September 8, 2008. (Def.’s Resp. Ex. B.)
Shortly thereafter, at least as early as January, 2009, Plaintiffs were having
difficulty meeting their obligations under the Note and contacted Defendant to obtain
some form of relief from their financial obligations under the Note. What followed
was a series of forbearance and loan modification agreements. (Pls.’ Compl. ¶¶ 7, 19;
Def.’s Resp. Ex. C-E.) Plaintiffs’ final effort to meet their obligations under the Loan
was an offer in May, 2015, of a short sale of the home in the amount of $52,500.
(Def.’s Resp. Ex. H.) The balance due and owing on the Loan at the time was
approximately $139,000.00. (Pls.’ Compl. ¶ 6; Def.’s Resp. Ex. E.) Defendant
declined the short sale, which represented a fraction of the outstanding loan balance.
(Def.’s Resp. 5; Ex. I.)
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According to Defendant, following the rejection of the short sale, Defendant
transferred the case to Attorneys Trott & Trott with instructions to proceed with a
judicial foreclosure in state court. (Def.’s Resp. 5.) Before Trott & Trott had the
opportunity to file that action, Plaintiffs filed a Complaint in Genesee County Circuit
Court that has now been removed to this Court. According to Defendant, at the time
that Plaintiffs filed this Complaint seeking to halt a foreclosure by advertisement, no
foreclosure by advertisement had been initiated. Id. The Court was informed at the
May 15, 2015 hearing on this matter that the Plaintiffs last made a payment on their
Mortgage Loan sometime in 2010.
A.

Likelihood of Success on the Merits

The essence of Plaintiffs’ Complaint is that Defendant should have done more
to offer Plaintiffs a loan modification that was acceptable to the Plaintiffs. Plaintiffs’
counsel reiterated this grievance at the telephonic hearing on May 15, 2015, stating
that Plaintiffs were interested in staying in the home if Defendant would offer a loan
modification that was acceptable to the Plaintiffs. The Court concludes that Plaintiffs
have failed to establish a substantial likelihood of success on the merits of their claims
warranting the issuance of injunctive relief.

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Plaintiffs’ motion for injunctive relief devotes two paragraphs to a discussion
of the likelihood that they will succeed on the merits of their three-count Complaint.
Those paragraphs do nothing more than set forth the legal standard governing the
likelihood of success analysis. (ECF No. 8, 15-16.) Plaintiffs do not separately
discuss the likelihood of success on any one of the three Counts of their Complaint
and indeed the motion does not discuss the merits of Plaintiffs’ particular claims at all.
Rather than discuss the likelihood of success on the merits of the claims in their
Complaint in this section of their brief, Plaintiffs urge the Court to consider that
Plaintiffs will suffer irreparable harm.
Plaintiffs bear the burden of establishing their entitlement to the extraordinary
remedy of injunctive relief. It is not up to the Court to devise a likelihood of success
argument for the Plaintiffs that they have not endeavored to develop themselves.
When given the opportunity to speak to this issue at the telephonic hearing on this
matter, Plaintiff’s counsel merely added that Plaintiffs “loved the house and want to
keep it,” but that they could not afford the loan modification that they had last agreed
to and which Defendant had accepted. There was no attempt to proffer a substantive
argument in support of the bald assertion that Plaintiffs were likely to succeed on the
merits of their claims. Accordingly, the Court finds that Plaintiffs have failed to
establish a likelihood of success on the merits of their Complaint and this factor
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therefore weighs heavily against granting the requested injunctive relief.
B.

Irreparable Harm

Plaintiffs urge the Court to find that in the absence of the requested injunctive
relief preventing Defendant from moving forward with the foreclosure sale of their
home, they will suffer irreparable harm. Plaintiffs must demonstrate that irreparable
injury is likely in the absence of an injunction, not just that it is possible. Winter,
supra, 555 U.S. at 22. The Court finds that Plaintiffs have failed to establish that they
are likely to suffer irreparable harm in the absence of the requested injunctive relief.
If the foreclosure sale of their home does occur, they will have the six month
redemption period within which to attempt to redeem their property or make other
living arrangements. See Livonia Prop. Holdings, LLC v. 12840-12976 Farmington
Road Holdings, LLC, 399 F. App’x 97, 104 (6th Cir. 2010) (finding that district court
did not clearly err in concluding that plaintiff did not face a threat of irreparable harm
from impending foreclosure sale where plaintiff still had the right to redeem). See
also Sheldon v. Vilsack, No. 11-10487, 2011 WL 611891, at *3 (E.D. Mich. Feb. 11,
2011) (“Because Plaintiff is permitted to redeem the property after the sale, she has
not shown that irreparable harm will occur at the time of the foreclosure sale.”) (citing
Livonia Prop. Holdings, LLC v. 12840-12976 Farmington Road Holdings, LLC, 717
F. Supp. 2d 724, 740-41 (E.D. Mich. 2010)).
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This Court previously has recognized that “in certain circumstances the threat
of eviction and the realistic prospect of homelessness constitute a threat of irreparable
harm and satisfy the first prong of the test for preliminary injunctive relief.” Smith v.
State Farm Fire and Cas. Co., 737 F. Supp. 2d 702, 714 (E.D. Mich. 2010) (internal
quotation marks and citation omitted). No such evidence has been presented here. In
fact, no evidence, in the form of affidavits or otherwise, accompanies Plaintiffs’
motion for injunctive relief in this case that would establish a realistic threat of
irreparable harm. In fact, in their motion, Plaintiffs assert that they “remain ready,
willing and able to pay back the arrearages on their loan by way of a repayment plan
or loan modification.” (ECF No. 8, Pls.’ Mot. 19.) “Plaintiff[s] do[] not provide
evidence that [they] would not be able to afford alternate housing and do[] not explain
why monetary compensation would be inadequate should [they] be required to
relocate.” Sheldon, 2011 WL 611891, at *3 (alterations added).
Plaintiffs also mention that they have a son with cerebral palsy and that
“relocating him would cause him unnecessary emotional and physical stress.” Pls.’
Mot. 19. The Court is of course sympathetic to Plaintiffs’ situation but notes that
Plaintiffs apparently were willing to relocate their son had the bank accepted the short
sale that Plaintiffs proposed in May, 2015. Plaintiffs do not explain why the stress to
their son caused by relocating six months from now would be any greater than it
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would have been had the short sale that Plaintiffs themselves proposed been accepted
by the Defendant.
The Court finds that Plaintiffs have failed to carry their heavy burden of
establishing a likelihood that they will suffer immediate and irreparable harm in the
absence of the extraordinary injunctive relief they seek, and this factor standing alone
is sufficient to deny the requested injunctive relief. See Lucero v. Detroit Public
Schools, 160 F. Supp. 2d 767, 801 (E.D. Mich. 2001) (“A showing of probable
irreparable harm is the single most important prerequisite for the issuance of a
preliminary injunction.”) (internal quotation marks and citation omitted).
IV.

CONCLUSION
Despite that discovery in this case is now closed, Plaintiffs’ motion for the

extraordinary remedy of injunctive relief comes without a shred of evidentiary support
or argument as to why they are likely to succeed on any one of their three claims. Nor
does the motion demonstrate in what manner Plaintiffs will face irreparable harm if
the injunction does not issue. Plaintiffs failure to establish either a substantial
likelihood of success on the merits or the likelihood that they will suffer irreparable
harm in the absence of an injunction necessitates denial of their motion for injunctive
relief.

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Accordingly, the Court DENIES Plaintiffs’ motion for injunctive relief.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: May 27, 2015

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on May
27, 2015.

s/Deborah Tofil
Case Manager

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