UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHEELER R. WINSTEAD, : : Plaintiff, : Civil Action No.: 09-0997 (RMU) : v. : Re Document No.: 2 : EMC MORTGAGE : CORPORATION et al., : : Defendants. :

MEMORANDUM OPINION

DENYING THE PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

I. INTRODUCTION

This matter comes before the court on the pro se plaintiff’s motion for a temporary

restraining order and preliminary injunction. The plaintiff filed a complaint along with the

instant motion on May 28, 2009, seeking to prevent the defendants from foreclosing on his real

property on June 9, 2009. The plaintiff asserts that the defendants violated the Truth in Lending

Act (“TILA”),

et seq., the Real Estate Settlement Procedures Act (“RESPA”),

et seq., the Fair Debt Collection Practices Act (“FDCPA”),

,

and the National Housing Act (“NHA”),

et seq. Defendants NRT Mid-

Atlantic, LLC d/b/a Coldwell Banker Residential Broker (“Coldwell”) and EMC Mortgage

Corporation (“EMC”) filed oppositions to the plaintiff’s motion on June 3, 2009. Because the

court determines that the plaintiff has failed to demonstrate that he is likely to succeed on the

merits of any of his claims, the court denies the motion for injunctive relief. II. FACTUAL & PROCEDURAL BACKGROUND

The plaintiff is the owner of real property located at 1226 F Street Northeast in the

District of Columbia (“the property”), which he acquired on or about April 25, 2005 after

executing a Deed of Trust in favor of Mortgage Electronic Registration Systems, Inc. Compl. ¶

1; Def. EMC’s Opp’n at 1.1 On September 12, 2008, Diane S. Rosenberg, Mark D. Meyer and

John A. Ansell, III were appointed as Substitute Trustees through a Deed of Appointment of

Substitute Trustees. Def. EMC’s Opp’n at 2. On May 20, 2009, Rosenberg sent the plaintiff a

letter notifying him that the Substitute Trustees intended to sell the property at a public auction

on June 9, 2009 at 10:34 a.m.2 Compl., Ex. 6.

The plaintiff then filed suit and submitted the instant motion on May 28, 2009.3 The

plaintiff asserts that the defendants violated TILA, see Compl. ¶¶ 2-7, RESPA, see

,

the FDCPA, see

(1), and the NHA, see

(2). Upon receipt of the motion on May

29, 2009, the court set an expedited briefing schedule, and defendants Coldwell and EMC filed

oppositions to the motion on June 3, 2009. The plaintiff filed a reply to defendant Coldwell’s

opposition on June 4, 2009.

1 Because the complaint and request for injunctive relief contain little in the way of factual background, the court relies in part on the defendants’ factual summaries, which the plaintiff has not contested. 2 EMC asserts that the Substitute Trustees had previously scheduled the foreclosure sale for September 16, 2008 and January 21, 2009. EMC cancelled the September 2008 sale, and the January 2009 sale was cancelled when the plaintiff filed a bankruptcy petition on the day the sale was to go forward. Def. EMC’s Opp’n at 2. 3 The complaint, not the motion for injunctive relief, contains the plaintiff’s arguments in favor of injunctive relief, and therefore the court will cite to the complaint throughout this Memorandum Opinion. See generally Compl.; Pl.’s Mot.

2 III. ANALYSIS

A. Legal Standard for Injunctive Relief

This court may issue interim injunctive relief only when the movant demonstrates “[1]

that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the

absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an

injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc.,

(2008) (citing Munaf v. Geren,

(2008)). It is particularly important

for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler,

(1992) (per curiam). Indeed, absent a “substantial indication” of likely success

on the merits, “there would be no justification for the court’s intrusion into the ordinary

processes of administration and judicial review.” Am. Bankers Ass’n v. Nat’l Credit Union

Admin.,

(D.D.C. 1999) (internal quotation omitted).

Moreover, the other salient factor in the injunctive relief analysis is irreparable injury. A

movant must “demonstrate that irreparable injury is likely in the absence of an injunction.”

Winter,

(citing Los Angeles v. Lyons,

(1983)). Indeed, if a

party fails to make a sufficient showing of irreparable injury, the court may deny the motion for

injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift

Supervision,

, 747 (D.C. Cir. 1986). Provided the plaintiff demonstrates a likelihood

of success on the merits and of irreparable injury, the court “must balance the competing claims

of injury and must consider the effect on each party of the granting or withholding of the

requested relief.” Amoco Prod. Co. v. Gambell,

(1987). Finally, “courts of

3 equity should pay particular regard for the public consequences in employing the extraordinary

remedy of injunction.” Weinberger v. Romero-Barcelo,

(1982).

As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v.

Armstrong,

(1997). The Supreme Court has observed “that a preliminary

injunction is an extraordinary and drastic remedy, one that should not be granted unless the

movant, by a clear showing, carries the burden of persuasion.”

Therefore, although the trial

court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted

lightly. In addition, any injunction that the court issues must be carefully circumscribed and

“tailored to remedy the harm shown.” Nat’l Treasury Employees Union v. Yeutter,

(D.C. Cir. 1990).

B. The Court Denies the Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction

The plaintiff claims that he has satisfied all four prongs required to obtain injunctive

relief. Compl. at 18-19. The defendants retort that the plaintiff has failed to show a likelihood of

success on the merits because, among other reasons, the claims are time-barred, see Def.

Coldwell’s Opp’n at 2-3; Def. EMC’s Opp’n at 4-8, that he will not suffer irreparable injury if

the property is foreclosed on, Def. Coldwell’s Opp’n at 3; Def. EMC’s Opp’n at 8, and that the

balance of the hardships and the public interest factors weigh against injunctive relief, Def.

Coldwell’s Opp’n at 3-4; Def. EMC’s Opp’n at 8-9. The court turns now to the question of

whether the plaintiff has demonstrated a likelihood of success on the merits.

The complaint first asserts that the defendants violated TILA. Compl. ¶¶ 2-7. As

defendant EMC points out, however, see Def. EMC’s Opp’n at 5, TILA contains a statute of

4 limitations establishing that “[a]ny [TILA] action . . . may be brought in any United States district

court, or in any other court of competent jurisdiction, within one year from the date of the

occurrence of the violation,”

(e). A violation of TILA occurs no later than the

date of the settlement of the loan. Lawson v. Nationwide Mortgage Corp.,

(D.D.C. 1986) (citing Postow v. OBA Fed. Sav. & Loan Ass’n,

(D.C. Cir.

1980)). In this case, the loan transaction occurred on or about April 25, 2005. See Compl. ¶ 1;

Def. EMC’s Opp’n at 1. Therefore, the plaintiff’s TILA claim appears to be time-barred,

(e), and, consequently, he is not likely to succeed on the merits of that claim, see

Miami Bldg. & Constr. Trades Council v. Sec’y of Def.,

(D.D.C. 2001)

(holding that because the plaintiff’s claim appeared to be barred by the statute of limitations, the

plaintiffs had failed to demonstrate a likelihood of success on the merits).

The plaintiff next alleges that the defendants violated RESPA. Compl. ¶¶ 8-10.

Defendant EMC claims that like TILA, RESPA contains a one-year statute of limitations. Def.

EMC’s Opp’n at 5. RESPA establishes that “[a]ny action pursuant to the provisions of [

, 2607, or 2608] may be brought . . . within 3 years in the case of a violation of [

] and 1 year in the case of a violation of [

or 2608] from the date

of the occurrence of the violation.”

. The complaint cites subsections of both

and

. See Compl. ¶¶ 8-10. Accordingly, the plaintiff’s §

2605 and § 2607 claims appear to have become time-barred in April 2008 and April 2006

respectively. See Simms v. CIT Group/Consumer Fin.,

, at *5 (W.D. Tenn.

Apr. 9, 2009) (holding that RESPA’s statute of limitations began to run on the date the plaintiff

closed the transaction on her mortgage); Metcalf v. Drexel Lending Group,

, at

5 *3 (S.D. Cal. Oct. 29, 2008) (noting that “[t]ypically, in cases involving loan documents, the

statute [of limitations] begins to run when the documents are signed unless evidence is presented

to override this assumption”) (citing Meyer v. Ameriquest Mortgage Co.,

(9th

Cir. 2003)). Therefore, the plaintiff is not likely to succeed on the merits of his RESPA claims.

See Miami Bldg. & Constr. Trades Council,

.

Finally, the complaint mentions two other statutes: the FDCPA and the NHA. See

Compl. ¶ 13(1)-13(2). Neither the complaint nor the plaintiff’s motion, however, offers any

explanation as to how the defendants allegedly violated these two statutes.4 Therefore, even

construing the complaint liberally and assuming that the plaintiff has asserted claims under these

statutes, he has failed to establish that he is likely to prevail on either of the claims. See

Mazurek,

(noting that the moving party carries the burden of justifying, by a

clear showing, his entitlement to injunctive relief). As a result, the court concludes that the

plaintiff is not entitled to injunctive relief, and it need not address the other three factors of the

injunctive relief calculus. See Demjanjuk v. Meese,

(D.C. Cir. 1986)

(declining to reach the issue of irreparable injury and denying the plaintiff’s request for

injunctive relief because he had failed to demonstrate a likelihood of success on the merits).

4 The complaint merely states: EMC MORTGAGE VIOALTED [sic] NUMEROUS FEDERAL LAWS AND STATUTES: 1. Fair Collection Debt Practices Act (FCDPA) [sic]

(d)[;] 2. 12 U.S.C. 1701 x(c)(5) PRE FORECLOSURE HOMEOWNERSHIP COUNSELLING [sic] NOTICE : imposes a specific statutory obligation on all creditors across the Unites [sic] States who service conventional loans, (non federally- insured home loans) that requires the creditor to send specific notice about access and availability of Home ownership counselling [sic] to defaulting home owners within 45 days of home loan payment default.

6 IV. CONCLUSION

For the foregoing reasons, the court denies the plaintiff’s motion for a temporary

restraining order and a preliminary injunction. An Order consistent with this Memorandum

Opinion is separately and contemporaneously issued this 5th day of June, 2009.

RICARDO M. URBINA United States District Judge

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