Hilgers v. Argent Mortgage Company, LLC, et al

Filing 17

MEMORANDUM OPINION AND ORDER. 1. Plaintiff's Motion for a Temporary Restraining Order (Doc. No. 4 ) is DENIED; and 2. Plaintiff's Motion to Cancel Sheriffs Sale on Property Dated January 31, 2013 (Doc. No. 8 ) is DENIED. (Written Opinion). Signed by Judge Donovan W. Frank on 1/30/2013. (BJS) cc: Joel J. Hilgers Modified on 1/30/2013 (jam).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Joel J. Hilgers,

Civil No. 13-56 (DWF/JJK)
Plaintiff,

v.

MEMORANDUM
OPINION AND ORDER

Argent Mortgage Company, LLC;
Wells Fargo Bank, N.A., as Trustee
Assignee for Mortgagee; John or Jane
Does 1-100, unknown investors;
John Roes 1-100, being undisclosed mortgage
aggregators (wholesalers), mortgage
originators, loan seller, Trustee of Pooled
Assets, Trustee for holders of certificates
of Collateralized Mortgage Obligations,
Defendants.

Joel J. Hilgers, Pro Se, Plaintiff.
David R. Mortensen, Esq., Wilford, Geske & Cook, PA, counsel for Defendant Wells
Fargo Bank, N.A.

INTRODUCTION
This matter is before the Court on a Motion for Temporary Restraining Order
(Doc. No. 4) and a Motion to Cancel Sheriff’s Sale on Property Dated January 31, 2013
(Doc. No. 8), both brought by Plaintiff Joel J. Hilgers (“Plaintiff”). Wells Fargo, N.A., as
Trustee Assignee for Mortgagee (“Wells Fargo”) opposes both motions. For the reasons
set forth below, the Court denies Plaintiff’s motions.

BACKGROUND
On or about October 26, 2004, Plaintiff took out a $499,000 loan (the “Loan”)
evidenced by an Adjustable Rate Note (Doc. No. 14 (“Boss Decl.”) ¶ 6, Ex. 2; Doc.
No. 1, Compl. ¶ 13), which secured real property in Cologne, Minnesota (the “Property”)
by way of a Mortgage. (Compl. ¶¶ 8-9.) The Mortgage was recorded in the Office of the
County Recorder of Carver County, Minnesota on November 8, 2004. (Id. ¶ 14; Doc.
No. 15, Ex. 1.) 1 At the time of the Loan, Plaintiff was provided the following:
(1) Truth-in-Lending Disclosure Statement (Boss Decl. ¶ 8, Ex. 4); (2) Notice of Right to
Cancel (id. ¶ 9, Ex. 5); (3) Good Faith Estimate and Settlement Statement (id. ¶ 10,
Ex. 6); and RESPA Servicing Disclosure (id. ¶ 11, Ex. 7). Plaintiff defaulted on his
Mortgage, and in May 2009, Plaintiff was provided with a Loan Modification
Agreement. (Id. ¶ 7, Ex. 3.) Plaintiff has not made a payment on his Mortgage since
August 2009. (Id. ¶ 12, Ex. 8.)
Plaintiff filed this action on January 7, 2012, asserting the following causes of
action: (1) violations of the Federal Truth In Lending Act (“TILA”); (2) “Defective-Void
Mortgage and Void Promissory Note Contracts”; (3) “Void Non Judicial
Foreclosure--Defects in Foreclosure Process”; (4) Injunctive Relief; (5) Intentional
Infliction of Emotional Distress; and (6) Quiet Title. (See generally Compl.) Plaintiff

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The Court grants Wells Fargo’s request for judicial notice of the October 26, 2004
Mortgage recorded in the Official Records of Office of the County Recorder, Carver
County, Minnesota, on November 8, 2004 as Document No. A400810.

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now moves for a temporary restraining order cancelling the Sheriff’s Sale scheduled for
January 31, 2013. Wells Fargo opposes Plaintiff’s request for injunctive relief.
DISCUSSION
Plaintiff seeks a temporary restraining order cancelling the Sheriff’s Sale of the
Property scheduled to occur on January 31, 2013. (Doc. No. 9, Ex. 1.) The Sheriff’s Sale
was originally scheduled to occur on January 10, 2013, but was postponed until the
presently scheduled January 31, 2013 sale date. (Id.) Wells Fargo opposes the motion.
Wells Fargo claims that it has not been validly served with the pleadings and was not
properly notified of the pending motion for a temporary restraining order. Without
acknowledging proper service, Wells Fargo submits that Plaintiff has failed to meet his
burden to establish that he is entitled to injunctive relief.
To determine whether to grant injunctive relief, a court considers: (1) the
likelihood of success on the merits; (2) the threat of irreparable harm absent the
restraining order; (3) the balance between this harm and the harm experienced by other
parties if the injunction issues; and (4) the public interest. Dataphase Sys., Inc. v. C L
Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). Injunctive relief is an extraordinary remedy
and the burden of establishing the propriety of an injunction is on the party requesting the
injunctive relief. Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 705 (8th Cir.
2011).
Plaintiff offers no evidence or legal authority in support of his motion for a
temporary restraining order. Instead, Plaintiff simply states: “Cancellation of Sheriff’s
Sale requested until rulings has [sic] been declared on case 13-CV-56.” (Doc. No. 9
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at 1.) Plaintiff’s Complaint and his declaration in support appear to be based on
conclusory allegations that: (1) Plaintiff did not receive the requisite disclosures under
TILA; (2) Plaintiff’s loan was improperly securitized; (3) Plaintiff is entitled to original
documents; and (4) certain, unspecified “false statements” were made. (See generally
Doc. No. 3.)
The Court concludes that Plaintiff has failed to demonstrate that he is likely to
succeed on the merits of his claims. First, Plaintiff’s claim that he was not provided the
requisite disclosures under TILA is belied by the evidence submitted by Wells Fargo,
showing that Plaintiff did, indeed, receive and sign TILA disclosures. (Boss Decl.
¶¶ 8-11, Exs. 4-7.) 2 Second, to the extent that Plaintiff asserts that he is entitled to
original documents, the Court notes that the “show-me-the-note” theory has been roundly
rejected. See, e.g., Jackson v. Mortg. Elec. Reg. Sys., Inc., 770 N.W.2d 487, 500–01
(Minn. 2009); Stein v. Chase Home Finance, LLC, 662 F.3d 976, 980 (8th Cir. 2011);
Butler v. Bank of Am., Civil No. 11–461, 2011 WL 2728321, at *6 (D. Minn. July 13,
2011), aff’d 690 F.3d 959 (8th Cir. 2012). Finally, Plaintiff’s challenge to the

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The Court also notes that Plaintiff’s TILA claims appear to be time-barred under
15 U.S.C. §§ 1635 and 1640; and to the extent Plaintiff asserts a claim for rescission
under TILA, Plaintiff’s claim also appears to lack merit because Plaintiff has not alleged
the present ability to pay back the proceeds loaned to him. See, e.g., Franz v. BAC Home
Loans Servicing, LP, Civil No. 10–2025, 2011 WL 846835, at *3 (D. Minn. March 8,
2011) (noting that courts have dismissed rescission claims under TILA based on a
plaintiff’s failure to allege an ability to tender loan proceeds); Hintz v. JP Morgan Chase
Bank, Civil No. 10–119, 2010 WL 4220486, at *4 (D. Minn. Oct. 20, 2010), aff’d 2011
WL 220661 (8th Cir. 2011) (rescission under TILA is conditioned on repayment of loan
proceeds).

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securitization of his loan appears to lack merit and does not support the issuance of a
temporary restraining order.
The Court also concludes that Plaintiff has failed to demonstrate that the
remaining Dataphase factors weigh in favor of issuing a temporary restraining order.
Indeed, Plaintiff has not made a showing at all. Considering the apparent lack of merit to
Plaintiff’s present motions, the Court reserves the right to order Plaintiff to pay attorney
fees and costs.
Having reviewed the Dataphase factors, the Court concludes that a temporary
restraining order is not warranted.
CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons set forth
above, IT IS ORDERED that:
1.

Plaintiff’s Motion for a Temporary Restraining Order (Doc. No. [4]) is

DENIED; and
2.

Plaintiff’s Motion to Cancel Sheriff’s Sale on Property Dated January 31,

2013 (Doc. No. [8]) is DENIED.

Dated: January 30, 2013

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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