Cannick v. Catrina Trust
Filing
33
ORDER denying 30 Motion for TRO Signed by Honorable David C Norton on 12/14/2017.(cban, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Jacqueline Cannick,
Plaintiff,
vs.
Catrina Trust, a Division of Wilmington
Savings Fund Society, FSB, as Trustee of
ALRP Trust 3.
Defendants.
)
)
)
) 9:17-cv-02569-DCN-MBG
)
)
ORDER
)
)
)
)
)
)
Plaintiff Jacqueline Cannick, proceeding pro se, filed the instant action on
September 22, 2017, against Defendant Catrina Trust. (See generally ECF No.
1.)1 This case arises out of a foreclosure proceeding in state court; Cannick
alleges that she “lost her home due to wrongful foreclosure by the Defendant.”
(ECF No. 1 at 1). On December 13, 2017, Cannick filed a Motion for Temporary
Restraining Order (ECF No. 30). Cannick asks for a temporary restraining order
(“TRO”) to “restrain[] and enjoin[]” the Defendant and its “respective employees,
agents, affiliates and all those in active concert or participation” with Defendant
“from transferring, disposing of and evicting” Cannick “from the real property
located at 371 Old House Road, Ridgeland, SC 29936.” (ECF No. 30 at 1 of 5).
Defendant filed a Response in Opposition to Cannick’s motion. (ECF No. 31).2
1
Defendant asserts that its correct name is “Christiana Trust.” (See ECF No.
31 at 1 n.1.)
2
Defendant filed a Motion to Dismiss on November 13, 2017. (ECF No.
16). That motion remains pending at this time.
1
I.
BACKGROUND
In her Complaint, Cannick alleges that she signed a mortgage on July 25,
2007, a judgment of foreclosure was entered on April 1, 2016, and the property
was sold at public auction on June 8, 2016. Compl. ¶ 17. She asserts that she
“has been fighting to stop this foreclosure action since April 2014.” Id. ¶ 18.3
Although some of Cannick’s allegations are difficult to follow, Cannick alleges,
inter alia, that the “Defendant who has serviced the loan of the Plaintiff did not
fund the loan, did not loan any money to the Plaintiff, and is not the holder in due
course of the Plaintiff and has no lawful right to have foreclosed upon Plaintiff’s
[sic] home.” Id. ¶ 42. She alleges the Defendant’s “deceptive scheme . . .
unjustly enriched Defendant to the detriment of Plaintiff by causing Defendant to
receive monetary payments from Plaintiff and money to which Defendant was not
entitled because the Defendant did not fund the loan of the Plaintiff.” Id. ¶ 36.
She also alleges the Defendant “failed to acknowledge Plaintiff’s military status
during the foreclosure process denying her the rights associated with the
Servicemembers Civil Relief Act.” Id. ¶ 22. According to Cannick, her home
was “sold by the Defendant unlawfully.” Id. ¶ 51. Cannick lists the following
causes of action in her Complaint: (1) “Wrongful Foreclosure”, (2) “Unjust
Enrichment”; (3) “Violation of the Servicemembers Civil Relief Act”; (4)
“Injunctive Relief”; and (5) “Declaratory Relief.” See generally ECF No. 1.
3
It appears Cannick refers to the state court case of Christiana Trust v.
Cannick, et al., Case No. 2014CP2700156, a foreclosure action which was filed in
the Jasper County Court of Common Pleas on April 7, 2014. See
http://publicindex.sccourts.org/jasper/publicindex/.
2
II.
DISCUSSION
As noted above, Cannick seeks a TRO to prevent her eviction “from the
real property located at 371 Old House Road, Ridgeland, SC 29936.” ECF No.
30, 1. She asserts that unless a TRO is granted, “it is anticipated” that the Sheriff
will “conduct an eviction on December 13, 2017, forcing the [Plaintiff] and her
children from the home.” Id. at 1–2. Cannick states,
To allow such an action[] would cause the [Plaintiff] to suffer
immediate and irreparable loss, damage or injury. The [Plaintiff] has
reason to believe the eviction would occur before [Defendant(s)] or
their attorney(s) can be heard in opposition to this motion for a
temporary restraining order, and before a hearing can be had on the
. . . Motion for a Temporary Injunction
Id. at 2. She asserts, upon information and belief, that Defendant “wrongfully
provided false information . . . during the foreclosure process.” Id. Cannick
alleges the Defendant “violated several [f]ederal laws pertaining to home
mortgages and foreclosure specifically the Real Estate Settlement Procedures
Act.” Id. She further states,
The [Cannick] would further assert that [she] will likely succeed on
the merits of the litigation and that there is no adequate remedy at
law to protect . . . [her]. The temporary restraining order and
temporary injunction are needed to preserve the status quo to avoid
possible irreparable injury to the [Cannick] pending the litigation of
the claims asserted in this action.
Id.
A temporary restraining order or a preliminary injunction is “an
extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008); see also U.S. Dep’t of Labor v. Wolf Run
Mining Co., 452 F.3d 275, 281 n.1 (4th Cir. 2006). To obtain a TRO, a Plaintiff
must show:
3
(1) that she is likely to succeed on the merits,
(2) that she is likely to suffer irreparable harm in the absence of
preliminary relief,
(3) that the balance of equities tips in her favor, and
(4) that an injunction is in the public interest.
Winter, 555 U.S. at 20. A Plaintiff seeking injunctive relief must show that all
four of the Winter factors support granting relief. See id.; see also Direx Israel,
Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (noting that
the Plaintiff “bears the burden of establishing that each of these factors supports
granting the injunction” (quoting Technical Publishing Co. v. Lebhar-Friedman,
Inc., 729 F.2d 1136, 1139 (7th Cir. 1984))).
Cannick’s Motion for TRO is denied because she has not shown that she is
likely to succeed on the merits.4 In Pennick v. Wells Fargo Bank NA, 2014 WL
12609309 (D.S.C. May 2, 2014), the court denied the Plaintiffs’ motion for a
temporary restraining order for that very reason, concluding that the Plaintiffs
“have not made a showing that they are likely to succeed on the merits of their
claim.” Pennick, 2014 WL 12609309, at *2. The court stated, inter alia,
To the extent Plaintiffs’ motion for a temporary restraining order
seeks to enjoin a pending state action by enjoining the execution of
the foreclosure order, the Anti-Injunction Act precludes such an
injunction. . . . To the extent Plaintiffs’ motion seeks to challenge
the state judgment issued by the state court, this court lacks subject
4
According to Defendant, the Jasper County Sheriff’s Office notified
Cannick that “it would execute the Writ of Assistance and evict Plaintiff from the
property at 10:00 a.m., December 13, 2017.” ECF No. 31 at 2. Cannick’s Motion
for TRO was clocked in by the Clerk at 11:13AM on December 13, 2017. ECF
No. 30 at 1. Defendant asserts that, to the best of its knowledge at the time it filed
its Response, Cannick had already been evicted by the time Cannick filed the
instant motion at 11:13AM. ECF No. 31 at 3. It is not clear, on the record
currently before the court, whether Cannick has in fact been evicted, or whether
she still resides in the home.
4
matter jurisdiction to review that judgment based upon the RookerFeldman doctrine. . . . Here, through the filing of this complaint and
the motion for a temporary restraining order, Plaintiffs are clearly
attempting to attack the validity of the state court foreclosure
proceedings, particularly the judgment of foreclosure. Relief would
clearly require this court to invalidate the judicial findings made in
the state-court foreclosure action. . . . Even if Plaintiffs were not
precluded under the Rooker-Feldman doctrine, the doctrine of res
judicata, or claim preclusion, would nevertheless bar Plaintiff from
bringing her claims here.
Pennick, 2014 WL 12609309, at *1-2 (citations omitted).
Like the Plaintiffs in Pennick, Cannick has not shown that she is likely to
succeed on the merits. To the extent Cannick seeks to challenge, in this federal
case, the decisions made in the state court case of Christiana Trust v. Cannick, et
al., Case No. 2014CP2700156, the Rooker-Feldman doctrine precludes this
challenge. The doctrine provides that “lower federal courts generally do not have
jurisdiction to review state-court decisions; rather, jurisdiction to review such
decisions lies exclusively with the superior state courts and, ultimately, the United
States Supreme Court.” Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997); see
also District of Columbia Ct. App. v. Feldman, 460 U.S. 462, 482–86 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923). In a 2005 opinion,
the United States Supreme Court clarified the scope of the Rooker-Feldman
doctrine, stating,
The Rooker-Feldman doctrine . . . is confined to cases of the kind
from which the doctrine acquired its name: cases brought by statecourt losers complaining of injuries caused by state-court 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).
Subsequently, the Fourth Circuit stated, “Exxon requires us to examine whether
the state-court loser who files suit in federal district court seeks redress for an
injury caused by the state-court decision itself. If he is not challenging the state5
court decision, the Rooker–Feldman doctrine does not apply. Davani v. Va. Dep’t
of Transp., 434 F.3d 712, 718 (4th Cir. 2006); see also Vicks v. Ocwen Loan
Servicing, LLC, 676 F. App’x 167, 168 (4th Cir. 2017) (noting that “[w]here a
federal complaint raises claims independent of, but in tension with, a state court
judgment, the Rooker-Feldman doctrine ‘is not an impediment to the exercise of
federal jurisdiction’ simply because ‘the same or a related question was earlier
aired between the parties in state court,’ and any tension created by the concurrent
federal and state proceedings ‘should be managed through the doctrines of
preclusion, comity, and abstention’” (quoting Thana v. Bd. of Licence Comm’rs
for Charles Cty. Md., 827 F.3d 314, 320 (4th Cir. 2016))).
Much like the Plaintiffs in Pennick, it appears that Cannick is attempting
to challenge—in federal court—the validity of the state court foreclosure
proceedings. To the extent she attempts to do so, she has not shown that she is
likely to succeed on the merits, because such a claim is prohibited by the RookerFeldman doctrine.
In addition, Cannick has not shown that she is likely to succeed on the
merits, given that many, if not all, of her claims appear to be barred by the
doctrine of res judicata. “Res judicata bars subsequent actions by the same parties
when the claims arise out of the same transaction or occurrence that was the
subject of a prior action between those parties.” Plum Creek Dev. Co. v. City of
Conway, 512 S.E.2d 106, 109 (1999). As set out by the Supreme Court of South
Carolina, “[r]es judicata requires three elements be met: 1) a final, valid
judgment on the merits; 2) identity of parties; and 3) the second action must
6
involve matters properly included in the first suit.” Stone v. Roadway Express,
Emp’r, 627 S.E.2d 695, 697 (2006) (citation omitted).5
Both Cannick and Defendant were parties in the state court case of
Christiana Trust v. Cannick, et al., Case No. 2014CP2700156. Additionally, the
subject matter in the instant action involves matters properly included in the first
suit, and the state court reached a final determination on the merits.6 Cannick’s
claims therefore appear barred by the doctrine of res judicata. See Walls v. Wells
Fargo Bank, N.A., 557 F. App’x 231, 233 (4th Cir. 2014) (affirming dismissal of
lawsuit “seeking to enjoin the foreclosure sale of a commercial property,”
concluding that “[r]es judicata was an appropriate ground on which to dismiss this
case” where although “the legal theories on which the claims here are based are
5
This court looks to South Carolina law when considering the effect of a
judgment of a South Carolina court. See Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 81 (1984).
6
According to the Jasper County Fourteenth Judicial Circuit Public Index,
Cannick filed a “Motion to Stay Eviction” in the state court case of Christiana
Trust v. Cannick, et al., Case No. 2014CP2700156 on June 26, 2017; she filed a
“Motion for Immediate Temporary Restraining Order and Notice of Motion and
Motion for a Temporary Injunction” in the state court case on July 21, 2017. See
http://publicindex.sccourts.org/jasper/publicindex/. In these motions, Cannick
asserted, inter alia, that Defendant “wrongfully provided false information” to the
state court “during the foreclosure process specifically stating” that Cannick “was
not a member of the United States military,” when, in fact, Cannick “was actually
an active duty member of the armed forces.”
See http://publicindex.sccourts.org/jasper/publicindex/. She also asserted that
Defendant “violated several Federal laws pertaining to home mortgages and
foreclosures specifically the Real Estate Settlement Procedures Act. See id.
Judge Sapp denied Cannick’s motions in an order dated September 13, 2017. See
id. Judge Sapp’s order provides as follows: IT IS FURTHER ORDERED that the
Sheriff of Jasper County or his authorized deputies are authorized and directed to
enter upon the premises, 371 Old House Road, Ridgeland, SC 29936, described in
the Petition and in the Judgment of Foreclosure and Sale at any time after 1:00
P.M. on the 15th day of September, 2017, and to either peaceably or forcibly
remove [Ms. Cannick] or any occupant and all personal property of same located
within or on the premises, and that force may be used, if necessary, to enter the
premises. TMS # 063-39-04-009 and 063-39-04-011. See id.
7
not exactly the same (negligence and unjust enrichment were not included in the
first lawsuit), the underlying grounds for all of the claims in both lawsuits are
Wells Fargo’s allegedly excessive and fraudulent charges”); Anyanwutaku v.
Fleet Mortg. Grp., Inc., 85 F. Supp. 2d 566, 572 (D. Md.), aff’d, 229 F.3d 1141
(4th Cir. 2000) (concluding, where the Plaintiff claimed that “Defendants
misrepresented facts at the foreclosure sale hearing and that the applicable laws
protecting his due process rights were violated,” that the claims were barred by
the state court judgments in the foreclosure action).
In light of the foregoing, Cannick has not shown that she is likely to
succeed on the merits of this case. Accordingly, Cannick’s Motion for Temporary
Restraining Order (ECF No. 30) is denied. See Cantley v. W. Va. Reg’l Jail &
Corr’l Facility Auth., 771 F.3d 201, 207 (4th Cir. 2014) (“All four requirements
must be satisfied.” (internal quotation marks and citation omitted)); Pennick, 2014
WL 12609309, at *1-2 (citations omitted); Montgomery v. Brown, Civ. A. No.
2:14-cv-00004-MR-DLH, 2014 WL 509144, at *3 (W.D.N.C. Feb. 10, 2014) (“If
the plaintiff wishes to challenge the validity of the Jackson County District
Court’s orders, she must do so in the state courts.”).
8
III. CONCLUSION
For the foregoing reasons, Cannick’s Motion for Temporary Restraining
Order is DENIED.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
December 14, 2017
Charleston, South Carolina
9
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?