Beverly Waldorf Tokarz Estate, the et al v. Mortgage Electronic Registration Systems, Inc. et al

Filing 87

ORDER ADOPTING REPORT AND RECOMMENDATION (Written Opinion). Signed by Judge Wilhelmina M. Wright on 08/09/2017. (TJB)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Beverly-Waldorf Tokarz, Occupant of the
Office of the Executor and Sole
Beneficiary of/for The Beverly Waldorf
Tokarz Estate and Trustee for Treborn
Manor, Private Trust; Frank Tokarz; and
Beverly W. Tokarz,
Plaintiffs,

Case No. 17-cv-1022 (WMW/KMM)

ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
Mortgage Electronic Registration Systems,
Inc.; Arvest Central Mortgage Company;
Universal American Mortgage Company,
LLC; Wilford, Geske, & Cook, P.A.; David
Mortenson; Eric D. Cook; Stephen
Plaisance; Karla Payne; and Bruce Gross,
Defendants.

Plaintiffs Beverly-Waldorf Tokarz, Occupant of the Office of the Executor and
Sole Beneficiary of/for The Beverly Waldorf Tokarz Estate and Trustee for Treborn
Manor, Private Trust, Frank Tokarz, and Beverly W. Tokarz commenced this lawsuit and
filed a Motion for Emergency Injunctive Relief seeking to invalidate the foreclosure sale
of their home. (Dkt. 19.) The Court referred Plaintiffs’ motion pursuant to 28 U.S.C.
§ 636. Currently before the Court are the May 18, 2017 Report and Recommendation
(R&R) of United States Magistrate Judge Katherine M. Menendez, (Dkt. 58), and
Plaintiffs’ objection to the R&R, (Dkt. 69).
Because Plaintiffs filed objections to the R&R, this Court’s review is de novo.
28 U.S.C. § 636(b)(1); accord Fed. R. Civ. P. 72(b)(3); LR 72.2(b)(3). “Injunctive relief

is an extraordinary remedy, and the burden rests with the movant to establish its
propriety.” Jackson v. Macalester Coll., 169 F. Supp. 3d 918, 921 (D. Minn. 2016).
When deciding whether injunctive relief is warranted, a district court considers four
factors: “(1) the threat of irreparable harm to the movant, (2) the balance between this
harm and the injury that the injunction will inflict on other parties, (3) the probability that
the movant will succeed on the merits and (4) the public interest.” Id. (citing Dataphase
Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981)). The failure to demonstrate
irreparable harm is an independently sufficient ground to deny injunctive relief. Watkins,
Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003).
The R&R recommends denying Plaintiffs’ motion for emergency injunctive relief
because Plaintiffs have failed to demonstrate that they face a threat of irreparable harm.
The R&R relies on two other cases from this District in which courts have concluded that
a borrower seeking to enjoin a foreclosure sale does not face a threat of irreparable harm
because the borrower has a right to redeem the property for six months following a
foreclosure sale. See Scanlon v. Nw. Mortg., Inc., No. 11-3128, 2012 WL 28140, at *2
(D. Minn. Jan. 5, 2012); Bazil v. Wells Fargo Bank, N.A., No. 11-1206, 2011
WL 2619095, at *1 (D. Minn. July 1, 2011). In their objection, Plaintiffs acknowledge
these cases but assert that “equitable relief requires that the wrong of Defendants in
conducting a foreclosure auction in this matter be immediately remedied with an
injunction voiding such sale of the property in question.” Plaintiffs also state that they do
not believe that Defendants would honor a redemption of the property. Because that
belief is speculative and unsupported by the record, it cannot justify the issuance of an

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injunction. Jackson, 169 F. Supp. 3d at 922 (citing Taxpayers’ Choice Volunteer Comm.
v. Roseau Cty. Bd. of Comm’rs, 903 F. Supp. 1301, 1308 (D. Minn. 1995)).
Having conducted its de novo review of the R&R, the Court agrees with the
conclusion that Plaintiffs have not satisfied their burden to demonstrate that they face an
imminent threat of irreparable harm. Consequently, Plaintiffs’ objections to the R&R are
overruled, the R&R is adopted, and Plaintiffs’ motion for emergency injunctive relief is
denied.
ORDER
Based on the R&R, the foregoing analysis and all the files, records and
proceedings herein, IT IS HEREBY ORDERED:
1. Plaintiffs’ objection to the R&R, (Dkt. 69), is OVERRULED;
2. The May 18, 2017 R&R, (Dkt. 58), is ADOPTED; and
3. Plaintiffs’ Motion for Emergency Injunctive Relief, (Dkt. 19), is DENIED.

Dated: August 9, 2017

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

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