UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PATRIOT-BSP CITY : CENTER II et al., : : Plaintiffs, : Civil Action No.: 10-0890 (RMU) : v. : Re Document No.: 1 : U.S. BANK NATIONAL : ASSOCIATION et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING THE PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

I. INTRODUCTION

This matter comes before the court on the plaintiffs’ motion for a temporary restraining

order. The plaintiffs, a group of commercial real estate developers, entered into a loan

transaction (“the Loan Agreement”) with the defendants to purchase, renovate and lease out a

property in Northeast D.C. The renovation did not proceed as planned, and the plaintiffs

defaulted on their loan in early 2009. The defendants have now scheduled a foreclosure sale to

occur on June 8, 2010. The plaintiffs have filed suit against the defendants, along with a motion

for a temporary restraining order (“TRO”) to enjoin the foreclosure sale. Upon consideration of

the parties’ expedited submissions on the TRO motion, the court concludes that the plaintiffs

have demonstrated their entitlement to temporary injunctive relief. Accordingly, the court grants

the plaintiffs’ motion. II. FACTUAL & PROCEDURAL BACKGROUND

On January 9, 2008, the plaintiffs entered into the Loan Agreement with defendant U.S.

Bank National Association (“U.S. Bank” or “the bank”), pursuant to which the bank agreed to

lend the plaintiffs approximately $66 million to purchase and renovate the Hecht Company

Warehouse, an art deco “Streamline Moderne” style building listed on the National Register of

Historic Places. Am. Compl. ¶ 15-17. The plaintiffs planned to eventually lease or sell the

property to third parties. Id. The Loan Agreement required the plaintiffs to pay interest on the

outstanding balance of the loan on a monthly basis, and to repay the principal amount of the loan

on January 10, 2011. Id. ¶¶ 18-19. The Loan Agreement also included a “Leasing Hurdle”

provision requiring the plaintiffs to lease out at least thirty percent of the property by April 10,

2009.1 Id., Ex. A (“Loan Agreement”) ¶ 5.2. The plaintiffs failed to meet the Leasing Hurdle

deadline; indeed, none of the space has been leased out to date. Pls.’ Mot. at 6. The plaintiffs

have also failed to pay property taxes, utility expenses, interest payments and construction fees.

Id.; Defs.’ Opp’n at 11. As a result, a mechanic’s lien and water and sewage authority liens have

been placed on the property. Id.

On October 21, 2009, U.S. Bank delivered a letter to the plaintiffs alleging that the

plaintiffs had defaulted on their loan payments and demanding that the plaintiffs cure their

default. Pls.’ Mot. at 6; Defs.’ Opp’n at 9-10. The plaintiffs failed to cure the default, and on

April 23, 2010, the bank filed suit to compel the plaintiffs to satisfy their obligations under the

Loan Agreement. Pls.’ Mot. at 10; Defs.’ Opp. at 11-12. On April 30, 2010, the bank

commenced a second lawsuit for breach of the Loan Agreement. Id. On or about May 5, 2010,

1 The plaintiffs state that the Leasing Hurdle deadline was April 9, 2009 rather than April 10, 2009. Compl. ¶ 36. For the purposes of the instant motion, this factual discrepancy is immaterial.

2 the bank notified the plaintiffs that it intended to hold a foreclosure sale on the property on June

8, 2010 at 12:30 p.m. Defs.’ Opp’n at 12; Pls.’ Mot. at 11.

The plaintiffs commenced this lawsuit on May 24, 2010 in the Superior Court of the

District of Columbia. See generally Compl. Along with the complaint, the plaintiffs filed a

motion for a TRO to enjoin the defendants from proceeding with the foreclosure sale. See

generally Pls.’ Mot. The defendants removed the action to this court on May 28, 2010, see

Notice of Removal, and the plaintiffs filed an amended complaint on June 2, 2010, see generally

Am. Compl. The defendants filed their opposition to the plaintiffs’ TRO motion on June 1,

2010, see generally Defs.’ Opp’n, and the plaintiffs filed a reply on June 2, 2010, see generally

Pls.’ Reply. With the motion now ripe for adjudication, the court turns to the legal standard and

the parties’ arguments.

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

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

Admin.,

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

The other critical 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 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).

4 B. The Court Grants the Plaintiffs’ Motion for a TRO

1. Without Temporary Injunctive Relief the Plaintiffs Face Irreparable Harm

The plaintiffs assert that because parcels of land are inherently unique, monetary

damages will be inadequate to redress their injury if they lose possession of the property. Pls.’

Mot. at 15. Additionally, the plaintiffs claim that loss of the property will prevent the court from

rendering a meaningful decision on the merits of the case.

The defendants respond that any

harm to the plaintiffs can be redressed with monetary damages. Defs.’ Opp’n at 13-15. Indeed,

the defendants assert, the foreclosure sale will benefit the plaintiffs because it will mitigate the

plaintiffs’ damages, if any, by preventing the property from falling further into disrepair. Id. at

15. In their reply, the plaintiffs add that the property at issue in this case is particularly “unique

and historically significant,” as indicated by its recognition on the National Register of Historic

Places. Pls.’ Reply at 6-7.

In determining whether a party has demonstrated that it will suffer irreparable harm, the

court must consider two central elements. Monument Realty LLC v. Wash. Metro. Area Transit

Auth.,

(D.D.C. 2008). First, the harm must be “certain and great, actual

and not theoretical.”

(citing Wis. Gas Co. v. Fed. Energy Reg. Comm’n,

, 674

(D.C. Cir. 1985)). In other words, the moving party must establish that the harm is “of such

imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable

harm.” Ashland Oil, Inc. v. Fed. Trade Comm’n,

(D.D.C. 1976), aff’d,

(D.C. Cir. 1976) (citations and internal quotations omitted). Second, to establish

that the harm is irreparable, there must be no other adequate legal remedies available. Monument

Realty, 540 F. Supp. at 74 (citing Wis. Gas Co., 758 F.2d at 774). The possibility that the court

could provide compensatory relief to redress a party’s injury “weighs heavily against a claim of

5 irreparable harm.” Id. When assessing these factors, the court must consider whether the

moving party has shown that irreparable harm is “likely” to occur. Id. at 74-75.

With regard to the first element, the foreclosure sale of the property is scheduled for a

date certain: Tuesday, June 8, 2010. See Pls.’ Mot. at 14. The foreclosure sale will result in the

plaintiffs losing possession of the property. Id. The plaintiffs also represent that another

potential purchaser has tendered a binding offer to purchase the property for an amount in excess

of the principal balance of the loan. See Pls.’ Reply at 7-8. In light of these circumstances, the

court concludes that the plaintiffs have demonstrated a substantial likelihood that they will face

actual and imminent harm if the court does not enjoin the foreclosure sale. See Five Star Dev.

Resort Communities, LLC v. iStar RC Paradise Valley LLC,

, at *3 (S.D.N.Y.

Mar. 18, 2010) (observing that “[t]he ability of a creditor to foreclose can suffice to establish

irreparable harm” and noting that the plaintiff had proffered that it would face financial ruin

absent injunctive relief) (citing Tucker Anthony Realty Corp. v. Schlesinger,

(2d Cir. 1989)); cf. Sun Vill. Farms v. Bowery Sav. Bank,

(D. Ariz.

1990) (holding that if the court were to deny the plaintiff’s request for injunctive relief

preventing a foreclosure sale, “the property would be listed for sale in foreclosure proceedings . .

. [and the plaintiff’s] interest would be completely lost”).

Turning to the second element, the plaintiffs rightfully highlight cases dealing

specifically with injunctive relief in the context of the loss of land and real property. See

generally Pls.’ Mot.; Pls.’ Reply. Courts in this Circuit have broadly held that “[w]hen land is

the subject matter of the agreement, the legal remedy is assumed to be inadequate, since each

parcel of land is unique.” Monument Realty,

(quoting Tauber v. Quan,

(D.C. 2007)); see also Peterson v. D.C. Lottery & Charitable Control Bd., 1994

, at *4 (D.D.C. July 28, 1994) (stating that “[i]t is settled beyond the need for citation

. . . that a given piece of property is considered to be unique, and its loss is always an irreparable

injury” (quoting United Church of the Med. Ctr. v. Med. Ctr. Comm’n,

, 701 (7th

Cir. 1982))). Further, the property at issue is especially unique given its placement on the

National Register of Historic Places. Pls.’ Reply at 6-7; cf. Monument Realty,

(concluding that because the property at issue was “valued for its uniqueness,” the harm could

not be remedied with monetary damages alone). Accordingly, the court concludes that the

plaintiffs have established that there is a high likelihood that they will suffer actual, imminent

and irreparable harm if the foreclosure sale is not enjoined.

2. The Plaintiffs Have Established a Sufficient Probability of Success on the Merits

Next, the court must assess the plaintiffs’ likelihood of success on the merits of their

breach of contract claim. See Winter,

. Because the plaintiffs have established a

high likelihood of irreparable injury absent the issuance of a TRO, they need not establish a

particularly high likelihood of success on the merits to be entitled to injunctive relief. See

Cuomo v. U.S. Nuclear Regulatory Comm’n,

, 974 (D.C. Cir. 1985) (stating that

“[i]njunctive relief may be granted with either a high likelihood of success and some injury, or

vice versa”). Rather, the plaintiffs need only “raise[] questions going to the merits so serious,

substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more

deliberative investigation.” Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc.,

(D.C. Cir. 1977).

The plaintiffs claim that the defendants breached the Loan Agreement by failing to

disburse funds that they were required to disburse under the agreement. Am. Compl. ¶¶ 58-63.

By way of background, in November 2008, the plaintiffs entered into a contract with a

7 construction company that agreed to perform certain construction work on the property for

approximately $3 million. Pls.’ Mot. at 4. The defendants approved the construction contract.

From December 2008 through February 2009, the plaintiffs submitted three draw requests

(referred to as Draw Request Nos. 8 through 10) to the defendants, and the defendants in turn

funded those payments in full. Id. at 5. In March 2009, the plaintiffs submitted Draw Request

No. 11 to the defendants, and although the defendants initially approved the request, the

defendants ultimately refused to fund the request or any further payment requests relating to the

construction contract. Id. As a result, the plaintiffs argue, the plaintiffs failed to satisfy the

Leasing Hurdle provision by the April 2009 deadline. Id. at 5-6.

The plaintiffs claim that the defendants’ failure to fund Draw Request No. 11 constituted

a breach of the Loan Agreement. Am. Compl. ¶ 60. The defendants, however, respond that they

were not obligated to fund that request. Defs.’ Opp’n at 17. More specifically, the defendants

assert that their obligation to make a disbursement only arose if the plaintiffs satisfied several

conditions precedent set forth in the Loan Agreement, one of which was that the loan be “in

balance” as of the disbursement date. Id. The defendants contend that the loan was not “in

balance” when the plaintiffs submitted Draw Request No. 11 because the Operating Expense

Reserve was under-funded; therefore, the defendants argue, they were not obligated to make the

disbursement related to that request. Id. at 17-18.

The plaintiffs disagree. They argue that “for purposes of determining whether the Loan

[was] in Balance, the Loan Agreement require[d] the various Reserves to be aggregated.” Pls.’

Reply at 11. The plaintiffs concede that the Operating Expense Reserve was under-funded, but

assert that the Interest Reserve was over-funded, and that the two Reserves, in the aggregate,

were over-funded. Id. Therefore, the plaintiffs maintain, the loan was “in balance” when Draw

8 Request No. 11 was submitted. Id. In other words, the plaintiffs argue that they satisfied all of

the conditions precedent to the defendants’ obligation to disburse the funds. Id. By not

complying with their obligation, the plaintiffs assert, the defendants breached the Loan

Agreement. Id.

Upon review of the parties’ arguments, as well as the Loan Agreement and the other

materials submitted for the court’s consideration, the court concludes that the plaintiffs appear to

have the better of this argument. The Loan Agreement states that “the Loan is in Balance if all

remaining unpaid costs of the Property, as determined by the Agent, including the Reserves, do

not exceed the amount of the Loan proceeds not yet advanced by the Lenders.” Loan Agreement

§ 3.2 (emphasis added). Thus, the Loan Agreement indicates that a determination as to whether

the fund is “in balance” incorporates the amounts contained in “the Reserves,” i.e., both the

Operating Expense Reserve and the Interest Reserve. The defendants maintain that they were

under no obligation to fund Draw Request No. 11 because there was a “line item out of balance

situation” for the Operating Expense Reserve. Defs.’ Opp’n at 17-18; see also Defs.’ Opp’n, Ex.

1 ¶¶ 15-16. Yet because the defendants considered the status of only the Operating Expense

Reserve rather than the status of the two Reserves in the aggregate, it appears that the defendants

erroneously concluded that that the loan was not “in balance” and, in turn, that the plaintiffs had

failed to satisfy the condition precedent to the defendants’ obligation to fund Draw Request No.

11. In sum, because the plaintiffs have raised a substantial question as to whether they did, in

fact, satisfy the conditions precedent to the defendants’ obligation to fund the request, the

plaintiffs have established, to the requisite degree, the prospect of succeeding on the merits of the

breach of contract claim arising from that request.2

2 As a result, the court need not address the prospect of the plaintiffs’ success on the merits of their remaining claims.

9 3. The Balance of the Equities Favors the Plaintiffs

The court must next balance the injury that the defendants will face if the court issues a

TRO against the injury that the plaintiffs will face absent a TRO. See Amoco Prod. Co.,

. The plaintiffs assert that the balance of the equities favors them because they stand

to lose their property if the foreclosure sale goes forward. Pls.’ Mot. at 15. The defendants, on

the other hand, argue that they will be harmed if the court issues a TRO because delaying the

foreclosure sale will cause the property to fall even further into disrepair, diminishing the

property’s value. See Defs.’ Opp’n at 35-38. The defendants also contend that the plaintiffs will

face no injury absent a TRO, see id. at 38, an argument foreclosed by the court’s analysis of the

irreparable injury prong, see Part III.B.1 supra.

On balance, the court concludes that the irreparable harm that the plaintiffs will incur if

the foreclosure sale goes forward as planned, see id., outweighs any harm that issuing the TRO

will cause to the defendants. Therefore, this factor favors the plaintiffs.

4. The Public Interest Considerations Favor Neither Party

The final prong of the injunctive relief analysis requires the court to consider the public

interest consequences, if any, of issuing the TRO. See Weinberger,

. Although

each party asserts that the public interest favors its position, see Pls.’ Mot. at 15-16; Defs.’ Opp’n

at 38-39, the court concludes that this factor stands in equipoise. In any event, given that the two

principal factors in the analysis, as well as the balance of the equities, favor the plaintiffs, the

plaintiffs have amply demonstrated that they are entitled to a TRO.

C. The Court Grants the Defendants’ Request for a Bond Pursuant to Rule 65(c)

The defendants request that the court order the plaintiffs to post a bond in the amount of

“the difference between the amount owed and the current value of the Warehouse Property.”

10 Defs.’ Opp’n at 39. The defendants offer, under seal,3 an appraisal indicating that the amount

that the plaintiffs owe pursuant to the Loan Agreement significantly exceeds the market value of

the property in its current condition. See

The plaintiffs do not address the defendants’

request for a bond. See generally Pls.’ Reply.

Federal Rule of Civil Procedure 65(c) authorizes the court to issue a TRO “only if the

movant gives security in an amount that the court considers proper to pay the costs and damages

sustained by any party found to have been wrongfully enjoined or restrained.” FED. R. CIV. P.

65(c). Because the plaintiffs fail to address the defendants’ request for a bond in their reply, the

court treats this request as conceded. See, e.g., Buggs v. Powell,

(D.D.C. 2003).

Further, although the plaintiffs vigorously contest the reliability of the property appraisal

offered by the defendants, see Pls.’ Reply at 20-23, the court notes that the plaintiffs have failed

to offer their own appraisal of the property’s current value, see generally

Instead, the

plaintiffs offer a declaration from plaintiffs’ counsel stating that a third-party purchaser has

offered to acquire the property.

Ex. D ¶ 14. The plaintiffs do not specify the amount offered

by the third-party purchaser, stating only that it is “more than 2.3 times the ‘appraised value’ of

the Property listed on the [defendants’] appraisal.” Id. ¶ 15. Therefore, the court grants the

defendants’ request for a bond in the amount representing the difference between the amount

owed by the plaintiffs and the current value of the Warehouse Property, as represented in the

defendants’ appraisal.

3 The court granted the defendants’ consent motion to file the appraisal under seal based on the defendants’ representation that the public disclosure of the appraisal could interfere with the integrity of the foreclosure sale. See Minute Order (June 2, 2010).

11 IV. CONCLUSION

For the foregoing reasons, the court grants the plaintiffs’ motion for a temporary

restraining order. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 7th day of June, 2010.

RICARDO M. URBINA United States District Judge

12