Crowley v. Bank of New York Mellon, The et al

Filing 23

REPORT AND RECOMMENDATIONS re 20 MOTION for Preliminary Injunction filed by Edmund T. Crowley. Objections to R&R due by 3/21/2011. Signed by Magistrate Judge Brooke C. Wells on 03/04/2011. (asp)

_____________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH
_____________________________________________________________________

EDMUND T. CROWLEY,
Plaintiff,

:

Civil No. 2:10-cv-1096

:
REPORT & RECOMMENDATION

vs.

:

THE BANK OF NEW YORK MELLON
:
CORPORATION FKA THE BANK OF NEW
YORK AS TRUSTEE FOR THE BENEFIT OF
THE CERTIFICATE HOLDERS,

JUDGE DEE BENSON

MAGISTRATE JUDGE BROOKE C.
WELLS

Defendants.
_____________________________________________________________________

On February 25, 2011, plaintiff Edmund T. Crowley filed his “Motion For Preliminary
Injunction” requesting that the Court enjoin defendants from proceeding with the foreclosure
sale of his property as scheduled on March 10, 2011.1 In support of his motion Mr. Crowley
advances several arguments including claims that: the May 2010 substitution of trustee is
invalid, defendants failed to properly publish the notice of sale and intent to foreclosure, and
defendant Mortgage Electronic Registration Systems Inc. lacked authority to assign the note to
the Bank of New York Mellon.2
A preliminary inunction is an extraordinary remedy that should only be granted where

1

Docum ent Num ber 20.

2

Docum ent Num ber 21; “Mem orandum In Support Of Prelim inary Injunction”.

necessity is clearly established.3 In order to establish entitlement to a preliminary injunction, the
moving party must show that “(1) [he or she] will suffer irreparable injury unless the injunction
issues; (2) the threatened injury. . . outweighs whatever damage the proposed injunction may
cause the opposing party; (3) the injunction, if issued, would not be adverse to the public
interest; and (4) there is a substantial likelihood [of success] on the merits.4
Applying the preliminary injunction standard to this matter, the Court finds the issue to
be moot. Defendants have cancelled the foreclosure sale of Mr. Crowley’s property that is the
subject of this motion.5 Without a sale, Mr. Crowley is unable to establish the requisite
imminent and irreparable harm necessary to provide the grounds for a preliminary injunction.
Accordingly, it is hereby recommended that plaintiff’s motion for preliminary injunction
be DENIED.
DATED this 4th day of March, 2011.

BY THE COURT:
__________
Brooke C. Wells
United States Magistrate Judge

3

Goldam m er v. Fay. 326 F.2d 268, 270 (10th Cir. 1964) .

4

Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005).

5

Docum ent Num ber 22; “Defendants’ Mem orandum In Opposition To Motion For Prelim inary
Injunction.”

2