Goss v. CitiMortgage, Inc. et al

Filing 5

ORDER DENYING 4 Motion for Temporary Restraining Order Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT GOSS JR.,
Plaintiff,
v.

Case No. 16-14391

CITIMORTGAGE, INC. and NATIONSTAR
MORTGAGE, LLC,
Defendants.
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ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
Before the court is an “Emergency Motion for Temporary Restraining Order”
asking the court to stay the December 20, 2016 sheriff’s foreclosure sale of Plaintiff
Robert Goss Jr.’s home. (Dkt. # 4.) The court may issue a temporary restraining order
without written or oral notice to the adverse party or its attorney only if “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 “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. P. 65(b)(1).
Plaintiff filed his motion at 4:34 pm on Monday, December 19, and the court was
not alerted until the next morning, less than an hour before the sale was scheduled to
begin. The court’s resources are not limitless — the court lacked adequate time to
review the motion and issue the requested order before the sale. In any event, while it
appears that Plaintiff has a strong argument on the merits, the court finds that Plaintiff is
unlikely to suffer irreparable harm and will deny Plaintiff’s motion.

Under Michigan law, parties may “effectively void a sheriff’s sale” with an
expungement affidavit. Connolly v. Deutsche Bank Nat. Trust Co., 581 Fed. Appx. 500,
506 (6th Cir. 2014). In fact, Plaintiff has previously used this mechanism. (See Dkt. # 22.) Plaintiff may also void the sale by redeeming the mortgage during the statutory
period, presumably six months. MCL 600.3240(1), (8). Plaintiff retains his rights, and
may not be evicted, during the redemption period. MCL 600.3236. While the filing of a
lawsuit does not automatically toll the redemption period, the court may extend the
period provided Plaintiff “makes a clear showing of fraud[] or irregularity” by Defendant
in connection with the foreclosure procedure and actual prejudice. Connolly v. Deutsche
Bank Nat. Trust Co., 581 Fed. Appx. 500, 504 (6th Cir. 2014) (citations omitted). Even
after the redemption period expires, the court retains the ability to set aside the sheriff’s
sale, though that power has been “drastically circumscribed.” Conlin v. Mortgage
Electronic Registration Systems, Inc., 714 F.3d 355, 359-60 (6th Cir. 2013); see also
Sweet Air Inv., Inc. v. Kenney, 275 Mich. App. 492, 739 (“The Michigan Supreme Court
has held that it would require a strong case of fraud or irregularity, or some peculiar
exigency, to warrant setting a foreclosure sale aside.” (internal quotation marks
omitted)). The court is not convinced that the sheriff’s sale will immediately or
irreparably harm Plaintiff such that an emergency order is necessary. Accordingly,
IT IS ORDERED that “Plaintiff’s Emergency Motion for Temporary Restraining
Order” (Dkt. # 4) is DENIED.
Plaintiff also requests the court issue an order directing Defendants to show
cause as to why the court should not issue a preliminary injunction. (Dkt. # 4, Pg. ID
158.) In light of the court’s denial of the temporary restraining order, it is unclear

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whether Plaintiff would seek a preliminary injunction. In any event, the court may not
issue a preliminary injunction absent notice to Defendants. Fed. R. Civ. P. 65(a).
Accordingly,
IT IS FURTHER ORDERED that Plaintiff is DIRECTED to expeditiously serve
Defendants. Once service has been effectuated, Plaintiff shall immediately notify the
court and provide telephone numbers by which the court may contact opposing counsel
to schedule a status conference.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

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Dated: December 20, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, December 20, 2016, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\TLH\Civil\16-14391.GOSS.Deny.TRO.TLH.docx

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