Bazil v. Wells Fargo Bank N.A. et al

Filing 32

ORDER: Plaintiff's Motion for Preliminary Injunction 16 is DENIED WITHOUT PREJUDICE. (Written Opinion). Signed by Judge Susan Richard Nelson on 07/01/11. (bcr)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Peter J. Bazil,

Civil No. 11-1206 (SRN/LIB)
Plaintiff,

v.

MEMORANDUM OPINION
AND ORDER

Wells Fargo Bank, N.A., f/k/a Wachovia
Mortgage FSB; Wachovia Mortgage,
FSB, a North Carolina corporation;
MERSCORP, Inc., a Delaware
corporation; et al.,
Defendants.

David J. Wymore, and Jesse H. Kibort, Daniels & Wymore, PLLC, 3165 Fernbrook Lane
North, Plymouth, MN 55447, for Plaintiff.
Charles F. Webber, and Erin L. Hoffman, Faegre & Benson LLP, 90 South Seventh St.,
Suite 2200, Minneapolis, MN 55402-3901, for Defendants Wells Fargo Bank, N.A., and
MERSCORP, Inc.

SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Plaintiff Peter J. Bazil’s motion for a
preliminary injunction (Doc. No. 16). For the reasons stated below, this Court denies the
motion without prejudice.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff originally filed this action in state court on April 4, 2011, alleging various

improprieties with respect to the financing of residential property he purchased. He then
filed an amended complaint on April 8, 2011, adding Defendant MERSCORP, Inc. as a
party. (Doc. No. 1.) On May 6, 2011, MERSCORP, with the consent of Defendants

Wells Fargo Bank, N.A. (and Wachovia Mortgage, FSB, which had been acquired by
Wells Fargo after Wachovia issued the mortgage loan to Bazil), removed the action to
federal court. (Id.) On May 10, 2011, Plaintiff moved for a preliminary injunction
seeking to prevent a foreclosure sale of the property, but withdrew that motion on May
12, 2011, stating that the sale originally scheduled for May 13, 2011, had been cancelled
without any new date being scheduled. (Doc. No. 11.) On June 8, 2011, Plaintiff filed
the present motion for a preliminary injunction, stating that the foreclosure sale had been
re-scheduled for June 13, 2011. This Court heard oral argument on June 10, 2011, and
denied the motion without prejudice from the bench, noting that this Memorandum
Opinion would follow.
II.

DISCUSSION
Plaintiff sought injunctive relief claiming that the foreclosure sale of the property

at issue would constitute irreparable injury. Defendants disputed that assertion (along
with others), noting that the property, while residential, was not Plaintiff’s home, but
rather a rental property, the loss of which, they argued, could be remedied with damages.
In any event, following a foreclosure sale, the defaulting mortgagor may redeem
the property within six months of the sale. Minn. Stat. § 580.23, subd. 1(a). Moreover,
“‘[t]he title of the mortgagor does not pass by the foreclosure till his right of redemption
expires.’” State v. Zacher, 504 N.W.2d 468, 471 (Minn. 1993) (internal quotation
omitted). Thus, unless and until that six-month period passes without redemption by the
mortgagor, no irreparable injury by loss of title to residential property has occurred.

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Here, Plaintiff may not presently obtain preliminary injunctive relief precluding a
foreclosure sale because no imminent threat of irreparable injury exists. A preliminary
injunction “is an extraordinary remedy never awarded as a matter of right.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 376 (2008). “‘The basis of
injunctive relief in the federal courts has always been irreparable harm and inadequacy of
legal remedies.’” Planned Parenthood Minnesota v. Rounds, 530 F.3d 724, 732 n.5 (8th
Cir. 2008) (en banc). Thus, lack of irreparable harm will preclude preliminary injunctive
relief regardless of the other factors. Dataphase Systems, Inc. v. C L Systems, Inc., 640
F.2d 109, 114 n.9 (8th Cir. 1981) (en banc). And the requisite showing of irreparable
harm may not be lessened to a mere “‘possibility’ of irreparable harm” based upon “a
strong likelihood of prevailing on the merits.” Winter, 555 U.S. at __, 129 S. Ct. at 375.
The Court thus denies Plaintiff’s motion as premature. The denial is, of course,
without prejudice to any renewal of a request for such relief if and when Plaintiff in fact
faces imminent irreparable injury.
III.

ORDER
Based on the foregoing, and all the files, records and proceedings herein, IT IS

HEREBY ORDERED that:
1.

Plaintiff’s motion for a preliminary injunction [Doc. No. 16] is DENIED

WITHOUT PREJUDICE.

Dated: July 1, 2011

s/ Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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