Myers v. Mr. Cooper Mortgage, LLC

Filing 5

ORDER denying 4 Motion for TRO. The Clerk of Court is instructed to assign a United States Magistrate Judge as the referral judge in this action. Signed by District Judge Max O. Cogburn, Jr on 7/10/2018. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:18-cv-00283-MOC
DORIAN JEROD MYERS,

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Plaintiff,
Vs.
MR. COOPER MORTGAGE, LLC,
Defendant.

ORDER

THIS MATTER is before the court on plaintiff’s pro se Notice of Motion and Motion
for Temporary Restraining Order and/or Preliminary Injunction.
In pertinent part, plaintiff asks this Court to “issue a temporary restraining order and
enjoin the foreclosure sale of [XXXX]1 Rolling Oak Lane, Charlotte, North Carolina ….”
Motion (#4) at 1. Plaintiff goes on to state that the foreclosure sale is July 17, 2018. For cause,
plaintiff states that he has “been lied to [by the mortgage lender] and taken advantage of
financially and I intend to prove it.” Id. (error in the original corrected). Essentially, defendant is
asking this federal Court to enter an Order restraining a state court from proceeding with a
foreclosure sale based on the pendency of this action.2

1

The Court has redacted the house number to protect the plaintiff’s privacy interests.

2
Pro se filings “however unskillfully pleaded, must be liberally construed.” Noble v. Barnett, 24 F.3d 582,
587 n. 6 (4th Cir.1994). Review of the Complaint reveals that plaintiff has asserted two claims: (1) “Predatory
Deceptive Lending;” and (2) “Wrongful Foreclosure.” Complaint (#1) at 3. In the “Nature of the Case,” states that
he believes defendant’s actions “violated federal consumer protection laws.” Id. at 2. Plaintiff does not, however,
cite to the federal statute from which such claims are derived.

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Applications for issuance of a Temporary Restraining Order (“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 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, a plaintiff 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)). While a balancing test was previously used, issuance of TRO now requires that every

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factor be “satisfied as articulated” and courts “must separately consider each Winter factor.”
Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013) (citing The Real Truth About Obama, Inc. v.
FEC, 575 F.3d 342, 347 (4th Cir. 2009)).
The court has closely read the Complaint (#1) (see footnote 1), and the arguments stated in
the instant motion. 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 a North Carolina court from proceeding with a foreclosure hearing later this month based
on the pendency of this federal civil action.
First, this Court likely lacks subject matter jurisdiction over this action in its entirety as
plaintiff does not appear to have properly invoked this Court’s jurisdiction3 and has likely failed
to state a cognizable claim.4 While much latitude is given to pro se litigants and their pleadings,
this Court simply cannot rewrite the Complaint as it cannot be the advocate for either party. While
it is possible that plaintiff is attempting to invoke any one of a number of federal consumer
protection statutes in the Complaint, the essence of the instant motion is to challenge or stop
ongoing proceedings in state court to foreclose on the note and sell the property.
Even if the court were to assume that foreclosure of the property amounts to irreparable
harm, plaintiff has failed to demonstrate that he would likely succeed on the merits of his

3
Plaintiff has asserted jurisdiction under “42 U.S.C. § 1983,” but makes no allegations that defendant acted
under color or state law in its lending practices. Id. at 1. The Court has also considered whether plaintiff may be
asserting a conspiracy between private and state actors to violate federally protected rights. See 28 U.S.C. §
1985(3). There are, however, no specific allegations concerning the activities of any state actor.

4

While the court has not conducted a review of the Complaint under the lens of Fed. R. Civ. P. 12(b), 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.”)).

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Complaint at trial, that the balance of harm weighs in his favor, or that a restraining order would
be in the public interest. Thus, every factor cannot be “satisfied as articulated.” Pashby, 709 F.3d
at 320. TROs are “extraordinary remedies involving the exercise of very far-reaching power to be
granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245
F.3d 335, 339 (4th Cir. 2001).
Plaintiff's request for a TRO fails for an additional reason: federal district courts lack the
jurisdiction to directly review the judgments of state courts as that power is reserved to the United
States Supreme Court. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). Courts have consistently applied the
Rooker–Feldman doctrine to dismiss claims requesting federal district court review of a state
court's foreclosure proceedings. See Poydras v. One West Bank, Civ. No. 9–11435, 2009 WL
1427396 (E.D.Mich. May 20, 2009) (collecting cases).
Having considered these factors and the record before it in the light most favorable to the
pro se plaintiff, the Court does not find any basis for granting the extraordinary remedy of a TRO
here. The Court therefore enters the following Order.

ORDER
IT IS, THEREFORE, ORDERED that plaintiff’s pro se Notice of Motion and Motion
for Temporary Restraining Order and/or Preliminary Injunction (#4) is DENIED.

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Having resolved the request for injunctive relief, the Clerk of Court is instructed to assign
a United States Magistrate Judge as the referral judge in this action.

Signed: July 10, 2018

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