Bey v. Brown et al.

Filing 28

Memorandum of Opinion and Order Plaintiffs 3 Motion for Temporary Restraining Order, Injunction, and for Declaratory Relief is denied. Judge Benita Y. Pearson on 7/22/2016. (E,CK) Modified text on 7/22/2016 (E,CK).

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SAKINA MAYSAN BEY,
fka Sheila M. Hayes,
Plaintiff,
v.
JEFFREY J. BROWN, etc., et al.,
Defendants.

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CASE NO. 4:16CV0267

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 3]

Pending is Plaintiff’s Motion for Temporary Restraining Order, Injunction, and for
Declaratory Relief (ECF No. 3). The Court has been advised, having reviewed the record, the
parties’ briefs and the applicable law. For the reasons set forth below, the Court denies the
motion.
I.
Plaintiff, proceeding pro se, filed this action on February 4, 2016 alleging that her
mortgage on 1422 Lansdowne Blvd., Youngstown, Ohio has been “securitized” and suggesting
that Plaintiff did not receive “real money” for her mortgage. The Amended Complaint (ECF No.
20) asserts claims for “Default of Estoppel by Acquiescence” (Count I), Fraud in the Factum
(Count II), violations of the Ohio Corrupt Practices Act (“OCPA”) (Count III), unspecified
“Crimes Against Humanity” (Count V), violation of the Truth in Lending Act (“TILA”) and the
Home Ownership Equity Protection Act (“HOEPA”) (Count VI), violation of the Real Estate
Settlement Procedures Act (“RESPA”) (Count VII), and seeks temporary and permanent

(4:16CV0267)
injunctive relief (Count IV)1 and rescission. Though Plaintiff alleges entitlement to relief under a
broad range of claims, all of her claims arise out of the enforcement of Plaintiff’s mortgage.
The Amended Complaint (ECF No. 20) is related to a foreclosure action brought by
Ditech Financial LLC (“Ditech”), formerly known as Green Tree Servicing LLC, against
Plaintiff. On March 2, 2016, Ditech filed a Complaint for Foreclosure in the Mahoning County,
Ohio Court of Common Pleas in Case No. 2016 CV 00680. It alleges that there is due and
unpaid on a promissory note the sum of $23,490.46 plus interest at the rate of 5.875% per annum
from April 1, 2015. The foreclosure is in rem only because of Plaintiff’s chapter 7 bankruptcy
discharge. In that proceeding, Ditech seeks to foreclose on the real property located at 1422
Lansdowne Blvd., Youngstown, Ohio. The state court foreclosure action is in the early
stages—on July 13, 2016, the court denied plaintiff’s motion for default judgment.
II.
In the within motion, Plaintiff requests:
1. A temporary restraining order, a preliminary injunction, and a permanent
injunction, all enjoining defendants, defendants’ agents, attorneys, and
representatives, and all persons acting in concert or participating with them, from
selling, attempting to sell, or causing to be sold the property, either under the
power of sale in the Mortgage/Deed of Trust/mortgage or by foreclosure action;
2. A declaration by the court that sale of the property to enforce the
Mortgage/Deed of Trust/mortgage is improper in that plaintiff has raised a claim

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Plaintiff requests that the Court award temporary and permanent injunctive
relief to prevent “irreparable harm including the loss of her unique Allodial Private
Ancestral Estate Property (that is in her trust entitled, ‘Moorish Aboriginal Trust’
recorded at the Mahoning County [Auditor’s] and the Mahoning County Recorder’s
Office for the purpose of a public record only).” ECF No. 20 at PageID #: 324, ¶ 30.
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that the [defendants] do not legally hold the note or Mortgage/Deed of Trust
and/or do not have [a] right to foreclose on the subject property.
*

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ECF No. 3 at PageID #: 107.
Four factors are important in determining whether a temporary restraining
order/preliminary injunction is appropriate: (1) the likelihood of the plaintiff’s success on the
merits; (2) whether the injunction will save the plaintiff from irreparable injury; (3) whether the
injunction would harm others; and (4) whether the public interest would be served by the
injunction. In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985). The test is a
flexible one and the factors are not prerequisites to be met, but must be balanced. Id. at 1229. In
balancing the four considerations applicable to temporary restraining order/preliminary
injunction decisions, the Court holds that equitable relief is not appropriate.
As an initial matter, the Anti-Injunction Act, 28 U.S.C. § 2283, precludes this court from
issuing an order enjoining the state court foreclosure proceedings. As this court has previously
noted:
Title 28 U.S.C. § 2283, the Anti-Injunction Act states, in full, that “[a] court of the
United States may not grant an injunction to stay proceedings in a State court
except as expressly authorized by Act of Congress, or where necessary in aid of its
jurisdiction, or to protect or effectuate its judgments.” Unless the injunction falls
within one of the three specifically defined exceptions, the Act creates an absolute
prohibition against enjoining state court proceedings, Atlantic Coast Line R.R. Co.
v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286-87, 90 S.Ct. 1739, 26 L.Ed.2d
234 (1970), abrogation on other grounds as recognized by Ark Blue Cross & Blue
Shield v. Little Rock Cardiolaogy Clinic, P.A., 551 F.3d 812, 821-22 (8th Cir.
2009). The party pursuing the injunction bears the burden of establishing that the
injunction falls within one of the exceptions. Smith v. Encore Credit Corp., 623
F. Supp.2d 910, 918-919 (N.D.Ohio, 2008). There is no indication that any of the
exceptions apply here. See Sherman v. Saxon Mortg. Services, Inc. 2010 WL
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2465459, 6 (W.D. Tenn., Jun 14, 2010) (if the foreclosure action is still pending
in state court, Plaintiffs’ prayer for relief from the foreclosure is precluded by the
Anti-Injunction Act).
Kaplan v. Fitzgerald, No. 1:11CV0945, 2011 WL 2039111, at *1 (N.D. Ohio May 25, 2011)
(Polster, J.). Plaintiff’s request that this Court enjoin the foreclosure proceedings pending in the
Mahoning County, Ohio Court of Common Pleas is barred by the Anti-Injunction Act, and there
is no indication from the within motion or Plaintiff’s pleadings that any delineated exception
would apply in this case. “These three exceptions, embedded within the statute’s text, permit
injunctions against state court proceedings (1) where Congress expressly authorizes, (2) where
necessary in aid of the court’s jurisdiction, and (3) where necessary to protect or effectuate the
court’s judgments.” Martingale LLC v. City of Louisville, 361 F.3d 297, 302 (6th Cir. 2004).
The Court understands Plaintiff’s allegations that Defendants were engaged in fraudulent
conduct in violation of various laws. The Court notes, however, that whatever defenses or claims
Plaintiff has can and should be adjudicated in the foreclosure proceedings pending in the
Mahoning County, Ohio Court of Common Pleas. Plaintiff has not alleged any impropriety on
the part of that court, and this Court will not interfere with proceedings there for the sole purpose
of delay.
III.
Plaintiff’s Motion for Temporary Restraining Order, Injunction, and for Declaratory
Relief (ECF No. 3) is denied.

IT IS SO ORDERED.

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(4:16CV0267)
July 22, 2016
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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