Jester v. Wells Fargo Bank, N.A. et al

Filing 6

OPINION AND ORDER by District Judge James H. Payne: denying 4 Plaintiff's Motion for Temporary Restraining Order, Preliminary Injunction and Declaratory Relief (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

TIMMY DEWAYNE JESTER,
Plaintiff,
vs.
WELLS FARGO BANK N.A. and
WELLS FARGO HOME MORTGAGE,
Defendants.

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Case No. 16-CV-524-JHP

OPINION AND ORDER
Before the Court is Plaintiff Timmy Dewayne Jester’s (“Plaintiff”) Application for
Temporary Restraining Order, Preliminary Injunction, and Declaratory Relief. (Doc. No. 4).
Plaintiff is proceeding pro se and in forma pauperis. Defendants have not yet been served in this
matter and therefore have not had an opportunity to respond to Plaintiff’s Application. After
careful review of Plaintiff’s Application and related court documents, Plaintiff’s Application is
DENIED.
BACKGROUND
Plaintiff filed his Complaint in this matter on December 2, 2016, seeking relief against
the defendants for foreclosure fraud and unjust enrichment. (Doc. No. 2). Plaintiff also filed his
Application for a Temporary Restraining Order (“TRO”), Preliminary Injunction, and
Declaratory Relief on December 2, 2016. (Doc. No. 4 (“Application”)). Based on the Complaint
and Application, the Court ascertains that Plaintiff is the borrower and the defendants are the
purported note holders on a residential mortgage. In the Application, Plaintiff asserts his home
will be sold at auction on December 13, 2016, and Plaintiff will be subject to eviction, without

immediate Court intervention. (Id.). Plaintiff seeks a temporary restraining order, a preliminary
injunction, and a permanent injunction, enjoining the defendants and their “agents, attorneys,
representatives, and all persons acting in concert or participating with them from selling,
attempting to sell, or causing to be sold the property.” (Doc. No. 4, at 6). Plaintiff also seeks a
declaration by the Court that “sale of the property to enforce the deed of trust/mortgage is
improper” as well as costs of suit. (Id.).
DISCUSSION
“A preliminary injunction is an extraordinary remedy; it is the exception rather than the
rule.” GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984) (citing United States v.
Lambert, 695 F.2d 536, 539 (11th Cir. 1983)). “The main purpose of a preliminary injunction is
simply to preserve the status quo pending the outcome of the case.” Tri-State Generation and
Transmission Assoc., Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir. 1986)
(citing Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir. 1975)). In order for a
preliminary injunction to issue, the movant must satisfy a four-part test:
The requesting party must demonstrate (1) that it has a substantial likelihood of
prevailing on the merits; (2) that it will suffer irreparable harm unless the
preliminary injunction is issued; (3) that the threatened injury outweighs the harm
the preliminary injunction might cause the opposing party; and (4) that the
preliminary injunction if issued will not adversely affect the public interest.
Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001). If the
plaintiff can establish that the latter three “harm” factors tip strongly in his favor, the test is
modified, and the plaintiff may meet the requirement for showing success on the merits by
showing “questions going to the merits so serious, substantial, difficult and doubtful, as to make
them a fair ground for litigation.” Star Fuel Marts, LLC v. Sam’s East, Inc., 362 F.3d 639, 653
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(10th Cir. 2004) (quoting Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)
(quotation marks omitted)).
A TRO is intended to preserve the status quo until the court can rule upon the application
for preliminary injunction. Fed. R. Civ. P. 65(b); 11A CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 2951 (3d ed.). Because the Court is adjudicating
Plaintiff’s preliminary injunction request with this order, the Court concludes a TRO is not
necessary. Therefore, Plaintiff’s application for a TRO is denied. See U.S. v. Springer, 2009
WL 511035, at *1 (N.D. Okla. Feb. 27, 2009) (listing the four criteria needed to obtain a TRO or
preliminary injunction, including “a substantial likelihood that he will eventually prevail on the
merits”) (citing Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1171 (10th Cir. 1998)).
Here, it is clear to the Court that Plaintiff’s application for a preliminary injunction fails
for failure to demonstrate either (1) a substantial likelihood of success on the merits or (2)
serious, substantial, difficult, and doubtful questions going to the merits. In the Complaint,
Plaintiff alleges the defendants committed fraud on the court and refers to 28 U.S.C. § 1655 (lien
enforcement), 8 U.S.C. § 1324c(a)(1)-(3) (penalties for document fraud), and Fed. R. Civ. P.
60(d)(3) (power to set aside a judgment for fraud on the court). In the Application, Plaintiff
argues the defendants are in violation of the Real Estate Settlement Procedures Act (“RESPA”),
12 U.S.C. 2601 et seq. Specifically, Plaintiff alleges the defendants responded improperly to a
borrower request for information related to Plaintiff’s mortgage note. Plaintiff further alleges the
defendants could not have purchased Plaintiff’s mortgage note from his previous lender, which
was already defunct, and the defendants used fraudulent endorsements to seek payment from
Plaintiff and ultimately obtain a foreclosure judgment against him.
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Plaintiff refers to a Wagoner County case, Case No. CJ-2012-0308 (the “Wagoner
County Case”), in which a foreclosure judgment was obtained against him. In the Wagoner
County Case docket, a Notice of Sheriff’s Sale indicates the sale of Plaintiff’s property will take
place on December 20, 2016. The docket further indicates the Oklahoma Court of Civil Appeals
and the Oklahoma Supreme Court have affirmed the judgment from the Wagoner County
District Court granting Wells Fargo Bank, N.A.’s motion for summary judgment on mortgage
foreclosure.1
Plaintiff’s request for a preliminary injunction hinges on his allegations that the
foreclosure in the Wagoner County Case was obtained fraudulently. The Court finds Plaintiff
has not shown a likelihood of success on the merits as to his claim that the foreclosure was
obtained fraudulently and therefore his request for injunctive relief must be denied. It appears
from the record that the impending sheriff’s sale of Plaintiff’s property is a matter that has
already been decided by the state courts. Plaintiff has not demonstrated this Court has subject
matter jurisdiction to enjoin the sheriff’s sale based on alleged fraud in the Wagoner County
Case. Plaintiffs have “[t]he burden of establishing subject matter jurisdiction” because they are
“the part[ies] asserting jurisdiction.” Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186,
1189 (10th Cir.2008).
While Plaintiff claims violations of federal statutes, his Application centers on allegations
that the state court’s proceedings and adjudication were based on fraudulent documents. By his
allegations, Plaintiff challenges the state court’s decision regarding foreclosure of Plaintiff’s
property. Plaintiff seeks federal court rejection of that outcome. For Plaintiff to prevail on his
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The Court may take judicial notice of the public filings in the Wagoner County Case, because they are matters of
public record. The Court may “take judicial notice of its own files and records, as well as facts which are a matter of
public record.” Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
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request for an injunction, the federal district court would have to review and ultimately reject the
state court orders. Accordingly, Plaintiff’s request for a preliminary injunction and TRO is
barred by the Rooker-Feldman doctrine. This doctrine is a jurisdictional prohibition, based on 28
U.S.C. § 1257, which holds that federal review of state court judgments may be obtained only in
the United States Supreme Court, not by collateral litigation in federal district court. See Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. of Columbia Court of Appeals v. Feldman, 460
U.S. 462 (1983). The Rooker-Feldman doctrine applies to bar “a party losing in state court . . .
from seeking what in substance would be appellate review of the state judgment in a United
States district court, based on the losing party’s claim that the state judgment itself violates the
loser’s federal rights.” Johnson v. DeGrandy, 512 U.S. 997, 1005-06 (1994). In other words, the
doctrine applies to “cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced and inviting district
court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284 (2005).
Here, the state court actually approved the sale before this suit was commenced, i.e.,
issued the final order in the foreclosure process. Therefore, Plaintiff’s attempt to enjoin the sale
is barred by the Rooker-Feldman doctrine because it essentially seeks to undo that order. See,
e.g., Rohr v. Home Loans Corp., 2005 WL 2027684, at *2-3 (D. Colo. Aug. 22, 2005) (applying
Rooker-Feldman doctrine to bar federal district court action seeking to rescind mortgage loan
after state court foreclosed on lien and approved sale of property at public auction).
Despite the leniency afforded a pro se party, Plaintiff still must allege sufficient facts to
establish he is properly entitled to relief. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
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1991). Plaintiff’s allegations simply fail to do so. Accordingly, his request for a preliminary
injunction, TRO, and other relief must be denied.

Because Plaintiff’s application for a

preliminary injunction fails on the first element, the Court need not address the remaining three
“harm” elements.
CONCLUSION
For the reasons detailed above, Plaintiff’s Application for Temporary Restraining Order,
Preliminary Injunction and Declaratory Relief (Doc. No. 4) is DENIED.
IT IS SO ORDERED this 7th day of December, 2016.

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