United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
BRISBOIS UNITED STATES MAGISTRATE JUDGE.
matter comes before the undersigned United States Magistrate
Judge upon Plaintiff Christopher Swanson's (hereinafter
“Plaintiff”) Motion for “Temporary
Restraining Order- Permanent-Injunction & Demand to Stop
Non-Judicial Foreclosure” (hereinafter “Motion
for Temporary Restraining Order”), [Docket No. 2],
upon referral from the Honorable Donovan W. Frank. (Order of
Reference [Docket No. 6]). Finding a hearing on
Plaintiff's Motion unnecessary, the undersigned issues
the present Report and Recommendation.
reasons discussed herein, the Court recommends that
Plaintiff's Motion for Temporary Restraining Order,
[Docket No. 2], be DENIED.
initiated the present action on January 15, 2019, by filing
his Complaint. [Docket No. 1]. Plaintiff named as Defendants
“Wilford, Geske, & Cook, attorneys for the
defendant”; Caliber Home Loans, Inc; Rubicon Mortgage
Advisors, LLC; and Mortgage Electronic Registration Systems,
Inc. (hereinafter collectively “Defendants”).
Complaint Plaintiff makes the following assertions:
7. The foreclosing party cannot verify they had legal
authority to execute the power of sale clause in the deed of
8. The foreclosing party has no witness to attest to the
9. Defendant's name is not signed on the contract in
10. The defendant failed to obtain the proper, legal valid
assignment of mortgage and power of sale.
11. The law is clear, however, entities foreclosing upon
homeowners must strictly comply with State statutory
prerequisites to foreclosure.
12. It is the black letter of the law that an entity seeking
to foreclose must have the actual legal authority to exercise
the power of sale.
13. The current foreclosure process has become an
undisciplined and lawless rush to seize homes without a
witness, the contract or an accounting of the money trail.
14. There is no language in the contract granting the
“Agreement for Signing Authority” to execute the
power of sale clause.
[Docket No. 1], at 5). Defendants appear to have foreclosed on
Plaintiff's residence, and it further appears that
Defendants will cause Plaintiff's residence to be sold
through a Sherriff's foreclosure sale on February 5,
2019. (See, Id.). In his “Request for
Relief” Plaintiff asserts as follows:
Plaintiff will suffer “irreparable injury” so the
Judge must stop the eviction, vacate the foreclosure
judgment, and any proceedings immediately. The foreclosing
parties accounting records mentioned in the restraining order
will verify the foreclosing party is in violation of Federal
money laundering, and wire fraud statutes. The law is clear,
entities foreclosing upon homeowners must strictly comply
with State and Federal statutory prerequisites to
foreclosure. The homeowners demands his day in court to
address the illegal and unethical misconduct that started at
signing. The homeowner demands the foreclosure sale, and the
eviction action be vacated with prejudice because the fatal
defects cannot be cured without obstruction the
administration of justice. The defect should have to be filed
at the start of the case to provide the court with
jurisdiction. The homeowner requests 3 times the fraudulent
foreclosure claim in reparation.
with his Complaint, Plaintiff filed the present Motion.
(See, Plf.'s Mot. [Docket No. 2]). Plaintiff
appears to incorporate the assertions from his Motion into
his Complaint. (See, Compl., [Docket No. 1], at 5)
(discussing “records mentioned in the restraining
Motion, Plaintiff asserts that “[t]he power of sale
clause was not disclosed” to him, “and the
foreclosing party has no verification the power of sale
clause was agreed by all parties who signed the original
contract.” (Plf.'s Mot., [Docket No. 2], at 3).
Plaintiff further asserts that “[i]n this case the
foreclosing party failed to prove consent a necessary element
to verify a contractual obligation, and has no legal
authority to excise the power of sale clause in the
unilateral contract.” (Id.). Plaintiff alleges
that Defendants never demonstrated that they had a
“secured interest in the subject property.”
(Id.). Plaintiff clarifies that the “primary
concern in this matter is the fact that [the] foreclosing
party had no legal right to foreclose upon the home, even if
the homeowner had not paid as required, if the same
foreclosing party has not fully complied with Civil
Code” because “[t]he foreclosing party did not
have legal authority to execute the power of sale clause, and
no document was recorded with the Office of the County
on these assertions Plaintiff ostensibly raises the following
causes of action: a claim for violation of federal wire fraud
laws, a claim for violations of the Fair Debt Collection
Practices Act (hereinafter “FDCPA”), a claim for
violations of the Truth in Lending Act, a claim for
violations of the Real Estate Settlement Procedures Act, and
a claim for violations of certain Minnesota Statutes.
(See, Id. at 5-11).
Plaintiff's Motion for Temporary Restraining Order.
[Docket No. 2].
seeks a temporary restraining order preventing Defendants
from selling his residence through a foreclosure sale on
February 5, 2019. Plaintiff argues that if the sale is not
stopped, then he will suffer irreparable harm, and he asserts
the sale should be prevented because Defendants actions as
alleged in his pleadings violated various statutes asserted
in his pleadings.
Standard of Review
considering a motion for a temporary restraining order or
preliminary injunction, the Court considers four factors: (1)
the probability that the moving party will succeed on the
merits; (2) the threat of irreparable harm to the moving
party; (3) the balance of harms as between the parties; and
(4) the public interest. S.J.W. ex rel Wilson v.
Lee's Summit R7 Sch. Dist., 696 F.3d 771, 776 (8th
Cir. 2012) (citing Dataphase Systems, Inc. v. C L
Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981));
Tom T., Inc. v. City of Eveleth, No. 03-cv-1197
(MJD/RLE), 2003 WL 1610779, at *3 (D. Minn. Mar. 11, 2003);
see also, Watts v. Fed. Home Loan Mortgage
Corp., No. 12-cv-692 (SRN/JSM), 2012 WL 1901304, at *3
n.3 (D. Minn. May 25 2012) (“Courts in the Eighth
Circuit apply the same standards to a request for a
preliminary injunction and temporary restraining
order.”) (citing S.B. McLaughlin & Co. v. Tudor
Oaks Condo. Project, 877 F.2d 707, 708 (8th Cir. 1989);
Jackson v. Nat'l Football League, 802 F.Supp.
266, 229 (D. Minn. 1992)); Callerons v. FSI Int'l,
Inc., No. 12-cv-2120, 2012 WL 4097832, at *2 (D. Minn.
Sept. 18, 2012) (explaining that these factors apply to both
preliminary injunctions and temporary restraining orders).
“At base, the question is whether the balance of
equities so favors the movant that justice requires the court
to intervene to preserve the status quo until the merits are
determined.” Dataphase, 640 F.2d at 113.
Injunctive relief is extraordinary relief, and the burden of
establishing the propriety of an injunction is on the movant.
Watkins,Inc. v. Lewis, 346 F.3d 841, 844
(8th Cir. 2003); see, Roudachevski v.
All-American Care Centers, Inc., 648 F.3d 701, 705 ...