Henry v. Bank Of America, NA et al

Filing 9

MEMORANDUM OPINION AND ORDER denying 8 MOTION for Temporary Restraining Order (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ANTWAN HENRY

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§

Plaintiff,

§
§

v.
BANK OF AMERICA, N .A., BANK OF
NEW YORK, WALTER INVESTMENT
MANAGEMENT CORP., AND
GREEN TREE LOAN SERVICING, LLC,

CIVIL ACTION NO. H-14-2497

§
§

§
§
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Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is Plaintiff's Emergency Application
for Temporary Restraining Order ("Plaintiff's Application") (Docket
Entry

No.8).

For

the

reasons

stated

below,

Plaintiff's

Application will be denied.
I. Background

Defendant

Green

Tree

Loan

Servicing,

LLC

("Green

Tree")

intends to sell Plaintiff's residence at a substitute trustee sale
on December

6,

2015. 1

Green

Tree

claims

to

have

a

mortgage

servicing agreement with defendant Bank of New York Mellon,
current

mortgagee

of

plaintiff's property.2

a

note

and

deed

of

trust

secured

the
by

Bank of New York Mellon appears to be in

1Notice of (Substitute) Trustee Sale, Exhibit D to Plaintiff's
Application, Docket Entry No. 8-3.
2Id.

possession of the note,

indorsed in blank,

assignee of the relevant deed of trust. 3
evidence to the contrary.

and the most recent

Plaintiff has offered no

Plaintiff has notified Green Tree that

he disputes the alleged debt, and he has requested "verification
and validation" pursuant to the Federal Debt Collection Practices
Act.4

Plaintiff does not appear to dispute that he is in default.
Plaintiff initiated this action on August 29, 2014, asserting

causes of action for quiet title,

breach of fiduciary duty,

violations of the Fair Debt Collection Practices Act.s
time

plaintiff

requested

preliminary injunction. 6

a

temporary

restraining

The court denied that

and

At that

order

request. 7

and
The

defendants have moved to dismiss Plaintiff's complaint for failure
to state a claim.B

Those motions remain pending.

3See Adjustable Rate Note, Exhibit A to Defendants Bank of
America, N.A. as Successor by Merger to BAC Home Loans Servicing,
LP and the Bank of New York as Trustee for the Certificateholders
CWABS, Inc. Asset-Backed Certificates, Series 2006-5 1 s Motion to
Dismiss Plaintiff's Amended Complaint and Brief in Support ("Motion
to Dismiss"), Docket Entry No.6-I; Deed of Trust, Exhibit B to
Motion to Dismiss, Docket Entry No. 6-2; Assignment of Deed of
Trust, Exhibit C to Motion to Dismiss, Docket Entry No. 6-3.
4See Letter from Antwan Henry to Barret Daffin Frappier
Teruner & Engel,
L.L.P., November 17, 2014,
Exhibit E to
Plaintiff's Application, Docket Entry No. 8-3.
sComplaint, Docket Entry No.1.
6Id.

70 r der, Docket Entry No.2.

BSee Motion to Dismiss, Docket Entry No.6; Defendants Walter
(continued ... )
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II. Analysis

Plaintiff seeks a temporary restraining order to prevent the
scheduled foreclosure sale.
A movant for a preliminary injunction must demonstrate
"(1) a substantial likelihood of success on the merits,
(2) a substantial threat that failure to grant the
injunction will result in irreparable injury, (3) the
threatened
injury outweighs
any damage
that
the
injunction may cause the opposing party, and (4) the
injunction will not disserve the public interest."
Reeves v. Wells Fargo Home Mortgage,
Cir. 2011)
Cir.

431 F. App'x 304,

305

(5th

(quoting Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th

1991))

The

court

has

carefully

considered

Plaintiff's

Application together with the pleadings and evidence on file and
concludes that Plaintiff has not shown a substantial likelihood of
success on the merits. 9
III.Conclusion and Order

Having

carefully

considered

pleadings and evidence on file,
concludes

that

Plaintiff's

Application,

and the relevant law,

Plaintiff's Emergency Application

for

the

the court
Temporary

8 ( • • • continued)
Investment Management Corp.'s and Green Tree Servicing, LLC's Motin
to Dismiss Plaintiff's Amended Complaint and Brief in Support,
Docket Entry No.7.

9Plaintiff's Application states that it is "supported by
Plaintiff's Memorandum in Support of Ex Parte Emergency Application
for Temporary Restraining Order
filed contemporaneously
herewith," Docket Entry No.8, p. 2, but no such memorandum was
filed. The court has reviewed the Application and the attachments
thereto.
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Restraining Order

(Docket Entry No.8)

should be and is hereby

DENIED.
SIGNED at Houston, Texas, on this 5th day

0

2015.

SIM LAKE
UNITED STATES DISTRICT JUDGE

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