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Swanson v. Wilford

United States District Court, D. Minnesota

January 29, 2019

Christopher Swanson, Plaintiff,
v.
Wilford, Geske, & Cook, et al., Defendants.

          REPORT AND RECOMMENDATION

          LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE.

         This 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], [1] and 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.

         For the reasons discussed herein, the Court recommends that Plaintiff's Motion for Temporary Restraining Order, [Docket No. 2], be DENIED.

         I. Background

         Plaintiff 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”).

         In his 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 trust/promissory note.
8. The foreclosing party has no witness to attest to the dispute.
9. Defendant's name is not signed on the contract in dispute.
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.

         (Compl., [Docket No. 1], at 5).[2] 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.

(Id.).

         Contemporaneously 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 order”).

         In his 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 Recorder.” (Id.).[3]

         Based 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).[4]

         II. Plaintiff's Motion for Temporary Restraining Order. [Docket No. 2].

         Plaintiff 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.

         A. Standard of Review

         When 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 ...


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