Hancock v. Ocwen Loan Servicing LLC et al

Filing 24

ORDER denying 10 Motion for Preliminary Injunction and/or ruling on Preliminary Injunction; denying as moot 22 Motion for TRO. Signed by Honorable Timothy D. DeGiusti on 1/6/2015. (mb)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
BRUCE A. HANCOCK, JR.,
Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, et al.,
Defendants.

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Case No. CIV-14-1380-D

ORDER
Before the Court are Plaintiff’s Motion for Preliminary Injunction Hearing and/or Ruling on
Preliminary Injunction [Doc. No. 10], filed December 24, 2014, and Plaintiff’s Motion for
Temporary Restraining Order [Doc. No. 22], filed January 5, 2015. At the Court’s direction,
Defendant Ocwen Loan Servicing, LLC (“Ocwen”) has responded to the Motion for Preliminary
Injunction. Also, on the same day that Plaintiff moved for a preliminary injunction, Ocwen filed a
motion to dismiss the Amended Complaint. Although Ocwen’s motion is not fully briefed, Ocwen
relies on the arguments presented in support of its motion to oppose Plaintiff’s Motion.
Plaintiff Bruce A. Hancock, Jr., who appears pro se, seeks an injunction pursuant to Fed. R.
Civ. P. 65(a), prohibiting Ocwen from proceeding with a foreclosure sale of his residence scheduled
to occur on January 8, 2015. Without injunctive relief, a sheriff’s sale of the subject property will
be carried out pursuant to a special execution and order of sale issued by the District Court of
Oklahoma County, Oklahoma, in the foreclosure proceeding styled, Greenpoint Mortgage Funding,
Inc. v. Hancock, Case No. CJ-2008-2068 (D.C. Okla. County, Okla. Nov. 10, 2014).1 Plaintiff asks

1

Neither Plaintiff nor Ocwen has provided a copy of this document, but it is reflected on the state
court docket sheet. See Def. Ocwen’s Br. Supp. Mot. Dism., Ex. A [Doc. No. 15-1], p.18. Also, Plaintiff has
submitted a notice of sale dated November 13, 2014, that references the document. See Pl.’s Mot. Prelim.
Inj., attach. 5 [Doc. No. 10-1].

the Court “to issue a preliminary injunction ordering Ocwen to cease all foreclosure proceedings
until a hearing can be held on this matter.” See Motion for Prelim. Inj. [Doc No. 10] at 2.
Plaintiff commenced this action against Ocwen and two consumer reporting agencies on
December 15, 2014, alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.,
and, as to Ocwen, violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(3).
Plaintiff alleges he had two real estate mortgages that were discharged in a Chapter 7 bankruptcy
case in February, 2012, but that Ocwen subsequently began foreclosure proceedings regarding a
mortgage lien on his home. Plaintiff claims, among other things, that Ocwen has furnished
inaccurate information to credit reporting agencies and that the agencies have failed to correct his
credit report after he notified them of a dispute regarding certain debts, including the mortgage in
foreclosure. As relief, Plaintiff seeks to recover statutory penalties and damages and to obtain a
permanent injunction requiring correction of his credit reports. In his Amended Complaint, Plaintiff
also requests a “preliminary injunction ordering Ocwen to cease foreclosure proceedings and
respond to Plaintiff’s requests for a loan modification and renewal of his HAMP[2] participation so
that Plaintiff can remain in his home.” See Am. Compl. [Doc. No. 6], p.8.
The last request is the focus of Plaintiff’s Motion for Preliminary Injunction. Plaintiff alleges
that he initiated the process for participating in a loan modification program with a prior mortgage
lender and that Ocwen has not responded to Plaintiff’s requests for participation in the program since
his account was transferred to Ocwen in December, 2013. It is unclear how these allegations relate
to the claims asserted in the Amended Complaint. Plaintiff’s position regarding his claims against
Ocwen appears to be that the debt was discharged in bankruptcy and, presumably, is not owed at all.

2

This acronym refers to a federal program, the Home Affordable Modification Program,
administered by Fannie Mae.

2

Also, Ocwen’s role in the foreclosure is unclear. The state court docket sheet for the case does not
list Ocwen as an interested party, and Ocwen denies that it is a party to the foreclosure proceeding.
Ocwen has moved to dismiss this action for lack of subject matter jurisdiction on the ground
that Plaintiff’s claims are barred by the Rooker-Feldman doctrine. Ocwen contends Plaintiff is
attempting to collaterally attack a final judgment previously entered in the foreclosure action. The
Court finds that it need not decide the question of jurisdiction before ruling on Plaintiff’s Motion
for Preliminary Injunction because the injunction sought is not available in any event.
As shown by the foreclosure case record and documents submitted by Ocwen in this case,
a foreclosure judgment was entered in August, 2009, and Plaintiff’s appeal from the judgment was
dismissed in May, 2014. See Ocwen’s Br. Supp. Mot. Dism., Ex. A [Doc. No. 15-1], pp.8, 17; Ex. B
[Doc. No. 15-2]; Ocwen’s Resp. Pl.’s Mot. Prelim. Inj., Ex. B [Doc. No. 23-2]. It appears that the
time for asserting any defense that Plaintiff may have to the mortgage lien, including any alleged
right to participation in a loan modification program, has passed. At the least, if Plaintiff has a valid
basis to stop the foreclosure sale or to prevent confirmation of any sale that is made, then the state
court action is the proper forum for Plaintiff to assert his right to remain in his home.
A federal court’s authority to interfere with a state court proceeding is limited.
[U]nder the Anti-Injunction Act, 28 U.S.C. § 2283, “[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 to aid in its jurisdiction, or to
protect or effectuate its judgments.” 28 U.S.C. § 2283. The Supreme Court has
made clear that the statute imposes an absolute ban on federal injunctions against
pending state court proceedings, in the absence of one of the recognized exceptions
in the law.
Phelps v. Hamilton, 122 F.3d 1309, 1324-25 (10th Cir. 1997) (citing Mitchum v. Foster, 407 U.S.
225, 228-29 (1972)); see also Atlantic Coast Line R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S.
281, 286 (1970) (the Anti-Injunction Act “is an absolute prohibition against enjoining state court
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proceedings, unless the injunction falls within one of three specifically defined exceptions”). “It is
settled that the prohibition of § 2283 cannot be evaded by addressing the order to the parties or
prohibiting utilization of the results of a completed state proceeding.” Atlantic Coast, 398 U.S. at
287. Plaintiff does not allege any facts, nor does the record otherwise suggest any basis, for this
Court to enjoin the state court foreclosure proceeding or to enjoin a party to the foreclosure case
from proceeding with execution of the state court judgment.
For these reasons, the Court declines to enjoin the foreclosure sale or to enjoin Ocwen, if it
is a party, from proceeding in the state court foreclosure case.
IT IS THEREFORE ORDERED that the Motion for Preliminary Injunction Hearing and/or
Ruling on Preliminary Injunction [Doc. No. 10] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Temporary Restraining Order [Doc.
No. 22] is DENIED as moot.
IT IS SO ORDERED this 6th day of January, 2015.

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