Cocco et al v. Bank of America Home Loans

Filing 4

DECISION AND ORDER denying Pltfs' 3 Motion for Preliminary Injunction. Signed by Senior Judge Thomas J. McAvoy on 12/3/12. [Served by mail.] (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------JOHN N. and MARY C. COCCO,
Plaintiffs,
v.

1:12-cv-1576

BANK OF AMERICA HOME LOANS,
Defendants.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Plaintiffs John N. and Mary C. Collo commenced the instant against Defendant
Bank of America Home Loans seeking to recover damages for violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and also asserting a common
law claim of negligence. Presently before the Court is Plaintiffs’ motion for a temporary
restraining order seeking to enjoin Defendant from foreclosing on Plaintiffs’ property.
I.

FACTS
Based on a reading of the Complaint and Plaintiffs’ motion papers, it appears that

Plaintiffs are the mortgagors in connection with their personal residence. Defendant is an
assignee of the mortgagee. Defendant sent Plaintiffs a letter seeking payment on the note.
In response, Plaintiffs demanded that Defendant validate the debt. In particular, Plaintiffs
sought, among other things, proof that Defendant had the authority to collect on the note.
Defendant did not respond, but, nonetheless, continued to seek to collect on the debt. As a
result, Plaintiffs commenced the instant action claiming that Defendants actions have

violated the FDCPA by misrepresenting the character, amount, and legal status of the
alleged debt and unlawfully threatened legal action. Currently before the Court is Plaintiffs’
ex parte motion for a temporary restraining order seeking to enjoin Defendant from pursuing
foreclosure proceedings.
II.

STANDARD OF REVIEW
To obtain injunctive relief, Plaintiff have the burden of demonstrating: (a)

irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently
serious questions going to the merits to make them a fair ground for litigation and a balance
of hardships tipping decidedly toward the party requesting the preliminary relief. Christian
Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d 206, 215 (2d Cir. 2012).
III.

DISCUSSION
This action was commenced on October 19, 2012. While there is still time for

Plaintiffs to timely effectuate service, see Fed. R. Civ. P. 4(m), to date, there is no indication
that Defendant has properly been served in accordance with Fed. R. Civ. P. 4. Accordingly,
at this time, the Court does not have personal jurisdiction over Defendant and, thus, cannot
enter any orders against it. For this reason alone, Plaintiffs’ motion must be denied.
Even if the Court did have personal jurisdiction, the Court finds that an ex parte
temporary restraining order is not warranted. Relief under the FDCPA is in the form of
monetary damages. It does not provide for injunctive relief for private plaintiffs. Sykes v. Mel
Harris and Assocs., LLC, — F.R.D. —, — (S.D.N.Y. Sept. 4, 2012) (injunctive relief is not
available under the FDCPA); Sparkman v. Zwicker & Assocs., P.C., 374 F. Supp.2d 293,
298-99 (E.D.N.Y. 2005); Sokolski v. Trans Union Corp., 178 F.R.D. 393, 399 (E.D.N.Y.
1998); Goldberg v. Winston & Marrone, P.C., 1997 WL 139526, at *3 (S.D.N.Y. 1997).
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Further, under Fed. R. Civ. P. 65(b), a temporary restraining order may be issued
without notice only if specific facts in an affidavit or verified complaint show that immediate
and irreparable injury, loss, or damage will result to the movant before the adverse party can
be heard and the moving party certifies in writing any efforts made to give notice and the
reasons why it should not be required. Here, it appears from the Complaint that there are (or
were) ongoing foreclosure proceedings.1 “[T]he protective purposes of the FDCPA typically
are not implicated ‘when a debtor is instead protected by the court system and its officers.’”
Gabriele v. Am. Home Mortg. Serv., Inc., 2012 WL 5908601, at *5 n.1 (2d Cir. Nov. 27, 2012)
(unpublished) (quoting Simmons v. Roundup Funding, LLC, 622 F.3d 93, 96 (2d Cir. 2010)).
Plaintiffs interests in the property can be (or should have been) protected through any
foreclosure proceeding. Whether there is a valid note and whether Defendant is the due
holder of any such note would appear to be primary issues in a foreclosure proceeding. At
the very least, Plaintiff would be entitled to challenge these issues in a foreclosure
proceeding. Accordingly, the Court cannot discern any irreparable harm at this time or the
need to proceed ex parte.
IV.

CONCLUSION
For the foregoing reasons, Plaintiffs’ motion is DENIED.

IT IS SO ORDERED.
Dated: December 3, 2012

1

See Pls.’ Mot. at p. 19 (“plaintiff asks the court to issue a temporary restraining order preventing
defendant from foreclosing on the property. . . .”); p. 18 (“defendant’s sale of the property is scheduled to
occur on Foreclosure Date Here [sic].”).
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