United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
Terrence Hollowell filed a pro se complaint against
a number of defendants. The Complaint was accompanied by an
“Emergency Motion for Injunctive Relief” (the
“Motion”), which seeks to enjoin the
sheriff's sale of the subject property. Having reviewed
the materials filed by the Plaintiff, the Court
DENIES the petition for a temporary
restraining order for the reasons stated below.
allegations are sparse. The Complaint lists 1314 Hudson
Street, Elkhart, Indiana, as the Plaintiff's address, but
does not allege that that is the subject property. However,
Plaintiff attached a loan modification agreement to his
Motion, indicating that 1314 Hudson Street is indeed at issue
(the “Property”). Apparently, at some point,
Plaintiff had obtained a loan that was securitized into a
mortgage-backed security trust on the Property. [Compl.
¶ 16] On February 29, 2008, the Property was assigned
and/or transferred from Mortgage Electronic Registration
System (“MERS”) to Chase Home Finance, Inc.
(“Chase”). [Compl. ¶¶ 7-8] When the
Property was assigned to Chase, Plaintiff alleges that there
was “no assignment of the Note with the Deed of
Trust.” [Compl. ¶¶ 10, 17] On April 16, 2012,
a complaint was filed in Elkhart County Superior Court to
foreclose upon the property. [Compl. ¶ 13] The state
court action resulted in the Property being slated for
sheriff's sale. [Compl. ¶ 18]
Subject Matter Jurisdiction
asserts claims under federal law: the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et
seq, and the Truth in Lending Act (“TLA”), 15
U.S.C. § 1601 et seq. Accordingly, the complaint raises
a question of federal law, and jurisdiction is proper under
28 U.S.C. § 1331. Furthermore, Plaintiff's federal
claims and his other claims appear to be part of a common
case or controversy, as they all arise from the
Defendants' conduct related to the transfer of the
subject property. Accordingly, this Court has supplemental
jurisdiction over the non-federal claims in this case.
Hansen v. Bd. of Trustees of Hamilton Se. Sch.
Corp., 551 F.3d 599, 608 (7th Cir. 2008). With subject
matter jurisdiction aside, the Court turns to the merits of
the Plaintiffs' petition for a temporary restraining
order and preliminary injunction.
Plaintiffs' Petition for a Temporary Restraining Order
and Preliminary Injunction
standard for determining whether a temporary restraining
order is appropriate is analogous to the standard applicable
when determining whether preliminary injunctive relief is
appropriate. See YourNetDating, Inc. v. Mitchell, 88
F.Supp.2d 870, 871 (N.D. Ill. 2000). The party seeking the
temporary restraining order bears the burden of showing that
it is “reasonably likely to succeed on the merits[, ]
is suffering irreparable harm that outweighs any harm the
nonmoving party will suffer if the injunction is granted,
there is no adequate remedy at law, and an injunction would
not harm the public interest.” Joelner v. Vill. of
Wash. Park, 378 F.3d 613, 619 (7th Cir. 2004) (stating
the standard for a preliminary injunction). If Plaintiff
meets this threshold, the court “weighs the factors
against one another in a sliding scale analysis . . . to
determine whether the balance of harms weighs in favor of the
moving party or whether the nonmoving party or public
interest will be harmed sufficiently that the injunction
should be denied.” Christian Legal Society v.
Walker, 453 F.3d 853, 859 (7th Cir. 2006).
Court does not find that this standard has been met in this
case. First, Hollowell's claims are not sufficiently pled
in accordance with Fed.R.Civ.P. 12(b)(6), nor is his second
cause of action, fraud, pled with particularity as required
by Fed.R.Civ.P. 9(b).
it appears that issuance of a temporary restraining order is
barred by the Rooker-Feldman doctrine. The
Rooker-Feldman doctrine precludes federal district
courts from exercising jurisdiction over “cases brought
by state-court 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).
the Plaintiff does not devote significant discussion to the
state foreclosure proceedings in this matter, the Complaint
indicates that those matters began with the filing of a
complaint to foreclose upon the subject property on April 16,
2012, in Elkhart County Superior Court. [Compl. 1 ¶ 13]
Both the Complaint and the Motion indicate that a related
sheriff's sale has been scheduled for the Property.
[Compl. ¶ 18; Mot. at 1] Under Indiana law, a
sheriff's sale is only scheduled after the entry of a
“judgment of foreclosure.” See Ind. Code
§§ 32-30-10-5; 32-30-10-8. The Plaintiff's suit
in this Court, at least as far as it attempts to enjoin the
sheriff's sale, is an attempt to relitigate the merits of
the underlying foreclosure action. This Court lacks the
jurisdiction to do so. See Mack v. Am. Nat. Bank of
Beaver Dam, No. 10-cv-557, 2010 WL 4365526, at *2-3
(W.D. Wis. Oct. 27, 2010) (denying temporary restraining
order in similar case on Rooker-Feldman grounds).
Federal Rule of Civil Procedure 65(b)(1)(B) requires
that-before a temporary restraining order may issue without
written or oral notice to the adverse party-“the
movant's attorney certifies in writing any efforts made
to give notice and the reasons why it should not be
required.” Although this rule applies on its face to
attorneys only, courts across the country have held pro
se litigants who seek a temporary restraining order to
the same requirement. See, e.g., Duncan v.
Quinn, No. 14-CV-01167-MJR, 2014 WL 5543961, at *2 (S.D.
Ill. Nov. 3, 2014); Lescs v. Berkeley Cnty. Sheriffs
Office, No. 3:14-cv-96, 2014 WL 4802057, at *2 (N.D.
W.Va. Sept. 23, 2014); Science Sys. & Apps., Inc. v.
United States, No. PWG-14-2212, 2014 WL 3672908, at *3
(D. Md. July 22, 2014).
there is no indication that the Defendant has been notified
of the Plaintiff's motion for injunctive relief. The
Plaintiff's petition attaches a signed certificate of
service. [Mot. at 3] The certificate states that “a
true and correct copy of the foregoing has been furnished
… on the 10th day of August, 2017. [Mot. at 3]
However, the Motion and certificate were filed on August 7,
2017. [Mot. at 1] The certificate is therefore deficient on
its face; Plaintiff cannot certify service that hasn't
happened yet. Nothing indicates that Plaintiff made any other
efforts to give the required notice, or why such notice
should not be ...