McNamara v. Wilmington Trust NA et al

Filing 13

Memorandum Opinion and Order: After considering Plaintiff's motion, Defendants' response, the evidence, and applicable law, the court denies Plaintiff's Emergency Motion for Temporary Restraining Order 11 . (Ordered by Judge Sam A Lindsay on 9/1/2017) (ash)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DENISE MCNAMARA,
Plaintiff,
v.
WILMINGTON TRUST, NA, TRUSTEE
FOR MFRA TRUST 2015-1, FAY
SERVICING, LLC AND SHELLEY
ORTOLANI,
Defendants.

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Civil Action No. 3:17-CV-1616

MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s Emergency Motion for Temporary Restraining Order
(“Motion”) (Doc. 11), filed August 30, 2017. After considering Plaintiff’s motion, Defendants’
response, the evidence, and applicable law, the court denies Plaintiff’s Emergency Motion for
Temporary Restraining Order (Doc. 11).
I.

Factual and Procedural Background
On June 2, 2017, Denise McNamara (“Plaintiff”) originally filed this action in the 134th

District Court of Dallas County, Texas, against Wilmington Trust, NA, Trustee for MFRA Trust
2015-1, Fay Servicing, L.L.C., and Shelley Ortolani (“Defendants”) to prevent a June 6, 2017
foreclosure sale on Plaintiff’s residence by Defendants. Plaintiff and her husband, Timothy
McNamara, are the owners of the house and lot located at 5906 Yardley Court, Dallas, Texas (the
“Property”). The foreclosure action was initiated because of Timothy McNamara’s undisputed
mortgage defaults. Timothy McNamara (“Borrower”) is the borrower under the subject mortgage.

Order – Page 1

Borrower is past due for the March 1, 2010 payment and all subsequent payments. Borrower is
not a party to this lawsuit.
In the state action, Plaintiff sought monetary damages and injunctive relief to prevent
Defendants from foreclosing on the Property. On June 6, 2017, the state court granted Plaintiff’s
request for temporary restraining order that prevented a foreclosure sale on the Property. A hearing
regarding Plaintiff’s request for a temporary injunction was set for June 20, 2017, at 9:00 AM. On
June 19, 2017, Defendants filed their Notice of Removal and removed the action to federal court.
Prior to this lawsuit, Plaintiff filed a lawsuit in McNamara et al. v. JPMorgan Chase Bank,
NA et al. (Case No. 3:12-CV-03731-P) in an attempt to prevent a foreclosure sale on the Property
following Borrower’s mortgage default.

The case was dismissed by summary judgment.

McNamara v. JPMorgan Chase Bank, N.A., No. 3:12-CV-3731-P, 2014 WL 12531109 (N.D. Tex.
Apr. 30, 2014).

Following the dismissal of that case, Plaintiff initiated two bankruptcy

proceedings that prevented a foreclosure sale on the Property. Following the second bankruptcy
case, Plaintiff initiated this lawsuit.
II.

Standard for Preliminary Injunction or Temporary Restraining Order
There are four prerequisites for the extraordinary relief of preliminary injunction or TRO.

A court may grant such relief only when the movant establishes that:
(1) there is a substantial likelihood that the movant will prevail on
the merits; (2) there is a substantial threat that irreparable harm will
result if the injunction is not granted; (3) the threatened injury [to
the movant] outweighs the threatened harm to the defendant; and (4)
the granting of the preliminary injunction will not disserve the
public interest.
Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Auth. of the State of Florida v.
Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en banc). The party seeking such relief must satisfy
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a cumulative burden of proving each of the four elements enumerated before a TRO or preliminary
injunction can be granted. Mississippi Power and Light Co. v. United Gas Pipeline, 760 F.2d 618,
621 (5th Cir. 1985); Clark, 812 F.2d at 993. Otherwise stated, if a party fails to meet any of the
four requirements, the court cannot grant the TRO or preliminary injunction.
In considering these four requirements and deciding whether to grant injunctive relief,
courts must keep in mind that the granting of a TRO or preliminary injunction “is an extraordinary
and drastic remedy which should not be granted unless the movant clearly carries the burden of
persuasion,” and a TRO or preliminary injunction is necessary “to preserve the court’s ability to
render a meaningful decision on the merits.” Callaway, 489 F.2d at 573. Thus, “only those injuries
that cannot be redressed by the application of a judicial remedy after a hearing on the merits can
properly justify a preliminary injunction [or TRO].” Id.
III.

Analysis
Plaintiff has not satisfied all four requirements for the issuance of a TRO. The court first

considers whether Plaintiff has shown a substantial likelihood of success on the merits. Plaintiff
alleges a cause of action for wrongful foreclosure. Plaintiff has not alleged any defect in the
foreclosure notices, and there is no evidence or allegation that Plaintiff has lost possession of the
Property. Under Texas law, there is no cause of action for wrongful foreclosure if the mortgagor
does not lose possession of the home. Sevilla v. Federal Nat’l Mortg. Ass’n, No. 3:15-CV-3594B, 2017 WL 697783, at *6 (N.D. Tex. Feb. 22, 2017) (citing Baker v. Countrywide Home Loans,
Inc., 3:08-CV-0916-B, 2009 WL 1810336, at *4 (N.D. Tex. June 24, 2009) (citing Peterson v.
Black, 980 S.W.3d 818, 823 (Tex. App.—San Antonio 1998, no pet.)). Therefore, Plaintiff cannot

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recover on a theory of wrongful foreclosure, and she fails to establish a substantial likelihood of
success on the merits.
The court next considers whether Plaintiff has shown there is a substantial threat that
irreparable harm will result if a TRO is not granted. Defendants filed their Notice of Removal on
June 19, 2017; Plaintiff did not file her Emergency Motion for Temporary Restraining Order until
August 30, 2017. This unexplained delay undercuts Plaintiff’s assertion that there is either an
immediate or substantial threat that irreparable harm will result if the requested injunctive relief is
not granted. Talon Transaction Techs., Inc. v. StoneEagle Servs., Inc., No. 3:13-CV-00902-P,
2013 WL 12173219, at *2 (N.D. Tex. July 24, 2013) (A delay in seeking a remedy is an important
factor when considering the requirements for injunctive relief.) (citing GoNannies, Inc. v.
GoAuPair.com, Inc., 464 F. Supp. 2d 603, 609 (N.D. Tex. 2006)). The party seeking extraordinary
relief of a preliminary injunction or TRO must satisfy each of the four elements for a TRO. The
court need not discuss the remaining elements because Plaintiff has failed to establish two of the
elements necessary to show that she is entitled to relief. Accordingly, the court concludes that
Plaintiff cannot satisfy each of the four elements required for the issuance of a TRO.
IV.

Conclusion
For the reasons herein stated, the court denies Plaintiff’s Emergency Motion for Temporary

Restraining Order (Doc. 11).
It is so ordered this 1st day of September, 2017.

_________________________________
Sam A. Lindsay
United States District Judge
Order – Page 4