BOUNASISSI et al v. NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION

Filing 14

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 3/4/16. (dd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

FREDERICK BOUNASISSI and STACEY
BOUNASISSI,
Plaintiffs,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 15-7585 (JBS/JS)

v.
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION,

MEMORANDUM OPINION

Defendant.

SIMANDLE, Chief Judge:
Before the Court is Plaintiff’s Amended Motion for
Temporary Restraining Order, Emergency Injunctive and
Declaratory Relief and Order to Show Cause. [Docket Item 13.]
Plaintiffs seek to stay an imminent eviction from their home
scheduled for March 7, 2016, after defaulting on a mortgage
purchased from Defendant. For the reasons that follow,
Plaintiff’s motions will be denied. The Court finds as follows:
1.

Plaintiffs Frederick and Stacey Bounasissi allege that

they executed and delivered to Merrill Lynch Credit Corporation
a $655,000 Note and a mortgage against real property in Laurel,
New Jersey to Mortgage Electronic Registration Systems, Inc. on
January 18, 2006. Defendant contends that it is now the owner
and holder of Plaintiffs’ Note and Mortgage. Defendant filed a

Complaint for Foreclosure against Plaintiffs in the Superior
Court of New Jersey, Burlington County, Chancery Division on
January 25, 2013, alleging that Plaintiffs defaulted on their
obligations under the Note and Mortgage. Defendant obtained a
Final Judgment for Foreclosure against Plaintiffs on May 7, 2014
and a Sheriff Sale was scheduled on July 3, 2014.
2.

During the pendency of the underlying state

foreclosure action, Plaintiffs allege that they applied for a
loan modification, which request was denied in writing by a
representative of Defendant on March 18, 2014. On July 14, 2014
– after Defendant obtained a foreclosure judgment on the
property – another representative of Defendant agreed to
“restart” the loan modification process. Plaintiffs and
Defendant exchanged documentation for the renewed loan
modification application through the fall of 2014.
3.

Defendant sold the property at a foreclosure sale on

December 4, 2014. Nonetheless, loan modification negotiations
continued between Defendant’s mortgage servicer and Plaintiffs
through April, 2015. Plaintiffs submitted further documentation
at the servicers’ request until ultimately a representative of
Defendant told Plaintiffs she could not help them “because they
had been foreclosed on.” Plaintiffs allege that this was the
first time “a representative of Defendants had may [sic] mention
of the sale taking place to the Plaintiffs.” A new deed was
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recorded on April 28, 2015, and on October 20, 2015, a writ of
possession was sent to the Plaintiffs.
4.

On October 20, 2015, Plaintiff filed a two-count

Complaint [Docket Item 1] against Defendant alleging violations
of the Real Estate Settlement Procedures Act (“RESPA”) and
RESPA’s Regulation X. After Defendant filed a motion to dismiss
[Docket Item 4], Plaintiffs filed a First Amended Complaint
[Docket Item 6] as a matter of course (see Fed. R. Civ. P.
15(a)(1)) and a Motion for a Temporary Restraining Order to stay
Plaintiffs’ imminent eviction from their home. [Docket Item 8.]
Plaintiffs’ motion for emergency relief was denied without
prejudice for failure to comply with numerous procedural
prerequisites, including a failure to verify their complaint
pursuant to L. Civ. R. 65.1(a), a failure to submit a brief
pursuant to L. Civ. R. 7.1(d), and a failure to explain why this
Court is the proper forum to hear their case rather than an
appeal to the state court which issued the final judgment of
foreclosure against them. [Docket Item 9.] Defendants renewed
their motion to dismiss Plaintiffs’ complaint for failure to
state a claim upon which relief can be granted. [Docket Item
10.] Plaintiffs then filed a Second Amended Complaint [Docket
Item 11] without seeking leave from the Court and without
indicating Defendant’s consent. (See Fed. R. Civ. P. 15(a)(2).)
Plaintiffs contemporaneously filed this Amended Motion for
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Temporary Restraining Order, Emergency Injunctive and
Declaratory Relief and Order to Show Cause. [Docket Item 13.]
5.

The Court notes that Plaintiffs’ amended motion

remains procedurally deficient. Plaintiffs have again failed to
submit a brief or statement that no brief is necessary in
accordance with L. Civ. R. 7.1(d).1 Moreover, Plaintiffs’ papers
fail to explain why this Court must address, on an emergency
basis, the legitimacy of Defendant’s foreclosure action and sale
when it occurred nearly two years ago and when Plaintiffs never
allege that it was challenged by appeal to the state court that
granted Defendant’s foreclosure. Plaintiffs contend that this
action is distinct from the underlying state foreclosure action
because “[t]he defenses to the underlying Foreclosure action
were, generally speaking to standing” and this suit alleges
violations of RESPA arising after the allegedly improper sale,

1

This is the second time in this case that Plaintiffs’ counsel,
Joshua Thomas, Esq., has failed to submit a brief in support of
his motion for extraordinary relief, the requirement for which
Mr. Thomas was previously explicitly advised in the listing of
deficiencies in this Court’s prior Letter Opinion. [Docket Item
9 at p. 1.] Counsel has ignored this advice. Plaintiffs’
submission will not be construed as a brief because it fails to
comply with L. Civ. R. 7.2(b), which requires, inter alia, a
table of contents and a table of authorities, together with the
party’s legal arguments. The Local Civil Rules are not an
invitation to parties to submit whatever papers they please;
they are rules that exist for a reason, to assist the courts in
the accurate and efficient adjudication of cases. Plaintiffs’
counsel is hereby warned explicitly to follow all applicable
procedural rules or his motions may be denied on that basis
alone.
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but Plaintiffs give no indication why these grounds could not
have been raised in the state court. The federal courts do not
have exclusive jurisdiction over RESPA, 12 U.S.C. § 2601 et seq.
6.

Furthermore, even addressing the merits of Plaintiffs’

motion, Plaintiffs have not set forth grounds entitling them to
emergency temporary or permanent relief. “The decision to grant
or deny ... injunctive relief is an act of equitable discretion
by the district court.”
U.S. 388, 391 (2006).

eBay, Inc. v. MercExchange, LLC, 547

Injunctive relief, however, remains “‘an

extraordinary remedy never awarded as of right.’”

Groupe SEB

USA, Inc. v. Euro-Pro Operating LLC, 774 F.3d 192, 197 (3d Cir.
2014) (quoting Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 24 (2008)). A party seeking a temporary or preliminary
injunction must demonstrate: (1) a reasonable likelihood of
success on the merits; (2) the prospect of irreparable harm in
the absence of an injunction; (3) that this harm would exceed
harm to the opposing party; and (4) that the public interest
favors the issuance of injunctive relief.

See, e.g., Rogers v.

Corbett, 468 F.3d 188, 192 (3d Cir. 2006) (citations omitted).
7.

Although all four factors guide a court’s inquiry, a

court will not grant injunctive relief, “regardless of what the
equities seem to require,” unless the movant successfully
demonstrates the first and second factors.

Hoxworth v. Blinder,

Robinson & Co., 903 F.2d 186, 197 (3d Cir.1990) (“[W]e cannot
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sustain a preliminary injunction ordered by the district court
where either or both of these prerequisites are absent.”); see
also Adams v. Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir.
2000).

Therefore, the “moving party's failure to show a

likelihood of success on the merits” or irreparable harm “‘must
necessarily result in the denial of a preliminary injunction.’”
Am. Express Travel Related Servs., Inc. v. Sidamon–Eristoff, 669
F.3d 359, 366 (3d Cir. 2012) (quoting In re Arthur Treacher’s
Franchise Litig., 689 F.2d 1137, 1143 (3d Cir. 1982)) (emphasis
added); see also Morton v. Beyer, 822 F.2d 364, 371 (3d. Cir.
1987) (“[A] failure to show a likelihood of success or a failure
to demonstrate irreparable injury must necessarily result in the
denial of a preliminary injunction.”).
8.

Plaintiffs fail to present even a token discussion of

their ultimate likelihood of success on the merits of their
RESPA claims; Plaintiffs write only that they “have a clear
legal right” to relief. From the papers submitted, the Court has
no idea what that “clear legal right” is and how Defendant has
violated it. Additionally, the Plaintiffs make no showing that
they will suffer irreparable harm if an injunction does not
issue, except insofar as contend that eviction from one’s home
necessarily constitutes irreparable harm; in the unlikely event
that such eviction is overturned in a court of competent
jurisdiction, Plaintiffs may be entitled to seek compensation in
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money damages for this forced relocation. Because Plaintiffs
have failed to demonstrate their likelihood of success and
irreparable harm, the Court need not balance the equities nor
address the public interest. See Hoxworth, 903 F.2d at 197
(generally providing that an injunction cannot issue absent a
showing of both a likelihood of success on the merits and
irreparable harm). The Court is constrained to note, however,
that the equities do not favor emergency relief where Plaintiffs
make no allegations that they ever paid their mortgage or
explain why such payment was impossible, and where Plaintiffs
have been under lawful judgment of foreclosure and to surrender
possession for many months.
9.

Accordingly, the Court will deny Plaintiff’s motion

for emergency relief.
10.

An accompanying Order will be entered.

March 4, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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