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Nelson v. Bank of America, N.A.

United States District Court, D. Minnesota

March 12, 2015

JENNIFER NELSON, Plaintiff,
v.
BANK OF AMERICA, N.A., Defendant.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, Magistrate Judge.

This matter is before the Court upon Plaintiff's Motion for Temporary Restraining Order [Docket No. 8]. Jennifer Nelson appeared pro se. Mark Schroeder, Esq., appeared on behalf of defendant.

The matter has been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).

I. FACTUAL BACKGROUND

The facts as alleged by plaintiff are as follows:

On June 9, 2009, plaintiff took out a loan in the amount of $181, 623 from Advanced Financial Services, Inc. ("AFS"), which was secured by a Mortgage on plaintiff's home in St. Paul, Minnesota. Amended Complaint ("Am. Compl."), ¶ 8 [Docket No. 7]; Affidavit of Keith S. Anderson ("Anderson Aff.), Ex. A (Note) [Docket No. 22]; Anderson Aff., Ex. B (Mortgage). AFS later assigned the Mortgage to defendant Bank of America, N.A. Am. Compl., ¶ 8.

In 2010, plaintiff was unable to make the required loan payments. Id., ¶ 9. Consequently, plaintiff entered into a Special Forbearance Agreement with defendant, in which she agreed to pay the past-due amounts. Id., ¶ 9; Ex. B (Special Forbearance Agreement). Plaintiff made the required payments under the Special Forbearance Agreement, and, on March 2, 2011, plaintiff received a Notice stating that she was "up to date and current" on her home loan payments. Id., ¶ 9; Ex. E (Notice dated March 2, 2011).

After receiving this Notice, plaintiff continued to make her regular payments. Id., ¶ 9. In August or September of 2011, defendant informed plaintiff that it was accelerating her loan payments. Id., Ex. C (September 12, 2011 letter referencing Notice of Intent of Acceleration letter received by plaintiff on August 29, 2011); Ex. F (September 12, 2011 letter). At some point, plaintiff applied for a home loan modification, but it was rejected for failure to submit all necessary documentation. Id., ¶ 9; Ex G. (Letter from Paul Karnafel to Curtis K. Walker, dated August 31, 2013).

During 2014, plaintiff applied several more times for a loan modification. Id., ¶¶ 22, 24. At various times in 2014, plaintiff was informed that her loan was in the foreclosure process. Id., ¶ 24; Ex. I (Letter from Frank Bianconi to Jennifer Nelson, dated July 1, 2014). To date, no foreclosure sale had been scheduled.

Plaintiff filed the instant motion for a temporary restraining order on October 30, 2014. Plaintiff sought to enjoin defendant from "moving forward with any foreclosure activities throughout the duration of this case." Plaintiff's Memorandum in Support of Motion for Temporary Restraining Order, p. 3 [Docket No. 9].

In response, defendant argued that plaintiff's motion was moot because no foreclosure sale has been scheduled. Defendant's Response to Plaintiff's Motion for a Temporary Restraining Order [Docket No. 25].

At the hearing on the motion, defendant's counsel represented on the record that defendant would not take any steps to foreclose on plaintiff's property during the pendency of this litigation. Counsel also represented that defendant would not take any steps to evict plaintiff from her property until this case is completed.

II. DISCUSSION

"When evaluating whether to issue a preliminary injunction, [1] a district court should consider four factors: (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other ...


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