Qureshi et al v. US Bank National Association et al

Filing 5

ORDER denying 3 Motion for TRO and 4 Request for Urgent Hearing. Signed by District Judge Max O. Cogburn, Jr on 6/14/2016. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:16-cv-00322-MOC
UZMA QURESHI
NAVEED QURESHI,
Plaintiffs,
Vs.
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC.
US BANK NATIONAL ASSOCIATION
WELLS FARGO BANK, N.A.
FIELDSTONE MORTGAGE
LASALLE BANK, N.A.
STRUCTURED ASSET INVESTMENT LOAN
LEHMAN BROTHERS HOLDINGS, INC.
AURORA LOAN SERVICES, INC.,
Defendants.

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ORDER

THIS MATTER is before the court on plaintiffs’ pro se Motion for Temporary Restraining
Order and “Request for Urgent Hearing.”
In their 38-page Complaint, which the court has read in a light most favorable to the pro se
litigants, plaintiffs attempt to stop a foreclosure of their home which is ongoing in state court by
challenging in this court the assignment by the originating lender of the note and deed of trust.
Plaintiffs ask this court to not only stop the state court proceedings, but to “quiet title” to their
property. In relevant part, plaintiffs allege as follows:
Plaintiffs, homeowners, disputes the title and ownership of the real property
in question (the "Home"), which is the subject of this action, in that the originating
mortgage lender, and others alleged to have ownership of Plaintiff s mortgage note
and/or Mortgage/Deed of Trust, have unlawfully sold, assigned and/or transferred
their ownership and security interest in a Promissory Note and Mortgage/Deed of
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Trust related to the Property, and, thus, do not have lawful ownership or a security
interest in Plaintiff s Home which is described in detail herein. For these reasons,
the Court should Quiet Title to the property in Plaintiff’s name. Exhibit B
Complaint (#1) at ¶15. In the request for a TRO, plaintiffs state in relevant part that
Defendants, and each of them, intend to sell the property ON MARCH 29, 2016,
having given notice that sale of the property. Unless restrained, defendants, and
each of them, will thus sell the property or cause the property to be sold.
Motion (#3) at 3. In addition to challenging the securitization of their loan, plaintiffs also
appear to contend that the loan originator qualified them for a loan they did not qualify for
and have asserted a number of federal causes of action.
Consideration of Request for a TRO
Applications for issuance of a TRO are governed by Fed. R. Civ. P. 65(b), which provides
as follows:
The court may issue a temporary restraining order without written or oral notice to
the adverse party or its attorney only if:
(A)
specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition; and
(B)
the movant's attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
Id. The court notes that “the issuance of an ex parte temporary restraining order is an emergency
procedure and is appropriate only when the applicant is in need of immediate relief.” Wright and
Miller, 11A Fed. Prac. & Proc. Civ. § 2951 (3d ed.).
In addition, “preliminary injunctions are extraordinary remedies involving the exercise of
very far-reaching power to be granted only sparingly and in limited circumstances.” Scotts Co. v.
United Indus. Corp., 315 F.3d 264, 272 (4th Cir. 2002) (quoting MicroStrategy Inc. v. Motorola,
Inc., 245 F.3d 335, 339 (4th Cir. 2001)). In evaluating a request for a TRO, the court considers the

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same factors applied for a preliminary injunction. Pettis v. Law Office of Hutchens, Senter, Kellam
& Pettit, No. 3:13-CV-00147-FDW, 2014 WL 526105, at *1 (W.D.N.C. Feb. 7, 2014) (citing
Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F. 3d 411 (4th Cir. 1999)).
In assessing such factors, plaintiffs must demonstrate that: (1) they are likely to succeed on
the merits; (2) they will likely suffer irreparable harm absent an injunction; (3) the balance of
hardships weighs in their favor; and (4) the injunction is in the public interest. League of Women
Voters of N. Carolina v. N. Carolina, 769 F.3d 224, 236 (4th Cir. 2014), cert. denied, 135 S. Ct.
1735, 191 L. Ed. 2d 702 (2015) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008)). The court has closely read the Complaint (#1), the attached Exhibits, and the arguments
stated in the instant motion. Plaintiffs ask the court to enter an order restraining all foreclosure
proceedings and preventing any action that will jeopardize ownership of the property relevant in
this action. By way of showing irreparable harm, plaintiff’s state that they have
alleged and can demonstrate at trial that Defendants breached their PSA contract
and through misrepresentation are about to foreclose on Plaintiff's real property,
and that because of the securitization process Defendants and their predecessors in
interest failed to properly assign Plaintiff's Mortgage note and Mortgage/Deed of
Trust according to state law and the PSA governing the original loan.
Motion (#3) at 9.
As to the likelihood of success on the merits, the court finds that plaintiffs’ motion fails to
make the required showing. It appears that, in essence, plaintiffs ask this court to restrain
defendants from executing upon a foreclosure judgment in a state civil action based on the
inclusion of their promissory note in a mortgage backed security. They contend that the issuers of
the security failed to properly assign their note.

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First, this court likely lacks subject matter jurisdiction over this action in its entirety as
plaintiffs appear to challenge the decision of a state court or an ongoing proceeding in this federal
district court. While plaintiffs have invoked a number of federal consumer protection statutes, the
essence of their Complaint is a challenge to what appear to be ongoing proceedings in state court
to foreclose on the note and sell the property. The court notes that “foreclosure actions brought
under state law do not give rise to federal question subject-matter jurisdiction.” Parker v. Investire,
LLC, No. CV JKB-16-256, 2016 WL 687496, at *1 (D. Md. Feb. 19, 2016) (citing McNeely v.
Moab Tiara Cherokee Kituwah Nation Chief, 2008 WL 4166328 (W.D.N.C 2008) (nothing in
“simple foreclosure action of real property...suggests the presence of a federal question.”)).
Second, the court observes that this is but one of many cases seeking to derail ongoing
foreclosure proceedings based on a theory that their mortgage or promissory note was exchanged
as part of the now infamous financial crisis created by mortgage backed securities. Courts have
repeatedly held that the mere fact of securitization and the fact that a negotiable promissory note
has changed hands a number of times does not extinguish the homeowners’ obligations under their
note. Webb v. Equifirst Corp., 2016 WL 1274618, at *5 (W.D. Va. Mar. 31, 2016). If the contrary
were the case, not only would many of us enjoy a windfall of a free home, that enjoyment would
be fleeting as the economy would then most certainly collapse as most (if not all) negotiable
promissory notes derived from mortgages were packaged as securities in the past decade. As this
court’s colleague in the Western District of Virginia recently explained:
The Webbs appear to contend that interests cannot be, or were not,
transferred properly during the securitization process. (Second Compl. ¶¶ 14, 16–
25; see also First Compl. 7 (“[I]f the Defendants, and each of them, did not hold
and possess the Note on or before the closing date of the Trust herein, they are
estopped and precluded from asserting any secured or unsecured claim in this
case.”).) But there is nothing inherent in securitization that alters the Webbs'
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obligations under their Note or prevents a purchaser of the Note from enforcing it.
As explained by the court in Upperman v. Deutsche Bank National Trust Co., No.
01:10-cv-149, 2010 WL 1610414, at *2 (E.D. Va. Apr. 16, 2010): “[t]here is no
legal authority that the sale or pooling of investment interest in an underlying note
can relieve borrowers of their mortgage obligations or extinguish a secured party's
rights to foreclose on secured property.” Judge Moon of this court quoted this same
language in rejecting theories similar to those asserted here. Blick v. JP Morgan
Chase Bank, N.A., No. 3:12-cv-1, 2012 WL 1030115, at *5 (W.D. Va. Mar. 27,
2012), aff'd, 474 Fed.Appx. 932 (4th Cir. 2012); see also McFadden v. Fannie Mae,
No. 7:11-cv-335, 2012 WL 37169, at *5 (W.D. Va. Jan. 9, 2012) (“[T]he Fourth
Circuit has rejected the notion that the validity of a note or deed of trust is
compromised by transfer to another party.” (citing Horvath v. Bank of N.Y., N.A.,
641 F.3d 617, 619 (4th Cir. 2011)).
Id. at *5.
While the court is sympathetic to plaintiffs and the loss they are facing, this court is not in
the position of giving parties false hope: the law is simply not what they believe it to be or, more
likely, what they were told it was by others, in blogs, or in popular stop-foreclosure seminars.
Indeed, the court notes that the Complaint filed in this case is nearly identical in both form and
substance to the Complaint filed in Webb, giving this court some reason to believe that a form
Complaint is being distributed to people who find themselves in the unfortunate position of facing
foreclosure by someone other than a licensed attorney. C.f. Webb, 7:15-cv-00413, Complaint (#12) (W.D.Va.).
After giving the motion careful consideration in light of current law, the court determines
that plaintiffs’ have been unable to make a threshold showing that they are likely to prevail on
their claims that touch on the lawfulness of the foreclosure on their home.

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ORDER
IT IS, THEREFORE, ORDERED that plaintiffs’ pro se Motion for Temporary
Restraining Order (#3) and “Request for Urgent Hearing” (#4) are DENIED.

Signed: June 14, 2016

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