United States District Court, D. Connecticut
ORDER DENYING WITHOUT PREJUDICE MOTION FOR TEMPORARY
Jeffrey Alker Meyer United States District Judge.
case involves a common and sad scenario of home owners
standing on the brink of a state court ordered foreclosure
sale who hope for a last-minute reprieve from a federal
court. Plaintiffs seek a temporary restraining order to block
the foreclosure sale of their home that is scheduled for two
weeks from now. Because plaintiffs have not established a
likelihood of success, I will deny their motion.
have filed a pro se complaint against defendants
Ocwen Loan Servicing, LLC, and Litton Loan Servicing LP. Doc.
#1. The complaint alleges that in 2002 plaintiffs entered
into a mortgage loan for their residential property in
Wallingford, Connecticut. Id. at 2 (¶ 8). Ocwen
is the mortgage servicing company and first mortgagee, and
Litton is the former mortgage servicer. Id. at 1-2
(¶¶ 4-6). The complaint alleges that on some
unspecified date plaintiffs defaulted on the mortgage loan.
Id. at 2 (¶ 9). They engaged in loan
modification trials from 2008 to 2011 but defendants failed
to apply payments made by plaintiffs against their account,
and plaintiffs are unaware of what happened to their funds.
Id. at 2 (¶ 10). Despite the fact that
plaintiffs complied with the modification terms and made
timely payments, they were not extended a permanent
agreement. Id. at 4 (¶ 11).
the loan was transferred to Ocwen in December 2011, Ocwen did
not accept plaintiffs' trial payments and accelerated the
mortgage despite plaintiffs' attempts to enter into a
loan modification. Id. at 4 (¶¶ 12-13). In
May 2016, a foreclosure complaint was filed seeking court
approval to accelerate the debt by means of a foreclosure
sale. Id. at 4 (¶ 14). The parties reached a
mediation agreement in April 2017, but defendants then
reneged on the agreement and instead moved for judgment and
to proceed with foreclosure. Id. at 4-5
(¶¶ 15-19). The property is scheduled for
foreclosure sale on January 12, 2019. Id. at 5
complaint alleges two federal law causes of action for
violation of the Fair Debt Collection Practices Act (FDCPA)
and violation of the Truth in Lending Act (TILA).
Id. at 5-7 (Counts I and II). The remaining causes
of action arise under state law for breach of contract,
estoppel, an accounting, and fraud. Id. at 7-10
(Counts III to VI).
complaint was filed about six weeks ago on November 16, 2018.
Today, on December 28, 2018, plaintiffs moved for a temporary
restraining order (TRO) to enjoin the foreclosure sale that
is scheduled for January 12, 2019. Doc. #7. Plaintiffs'
TRO motion claims that they have served defendants with the
complaint, but they do not attach documentation proving such
service, and the docket does not reflect that defendants have
been served or that they have entered an appearance.
According to an affidavit attached to the TRO motion, someone
named “Katie McGraw” has telephoned Ocwen today
to give Ocwen notice of the TRO motion and faxed a copy of
the TRO motion to an Ocwen fax number in Florida. Doc. #7 at
temporary restraining order is an “extraordinary and
drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of
persuasion.” Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Reidy, 477 F.Supp.2d 472, 474 (D. Conn.
2007) (quoting Moore v. Consol. Edison Co. of N.Y.,
Inc., 409 F.3d 506, 510 (2d Cir. 2005)). The standard
governing the grant of a temporary restraining order is the
same as the standard that governs the grant of a preliminary
injunction. See Vann v. Fischer, 2011 WL 6788404, at
*1 (S.D.N.Y. 2011). Accordingly, a party seeking a temporary
restraining order “must generally show a likelihood of
success on the merits, a likelihood of irreparable harm in
the absence of preliminary relief, that the balance of
equities tips in the party's favor, and that an
injunction is in the public interest.” Am. Civil
Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir.
here have not established a likelihood of success. Based on
the fact that they have spent years litigating a foreclosure
action in state court, it appears that they have received a
full and fair opportunity to show why they should not be
subject to foreclosure. Therefore, it is highly likely that
plaintiffs' present challenge to the foreclosure sale
will be precluded by the Rooker-Feldman doctrine
(which generally prevents federal courts from second-guessing
state court judgments) or by principles of res
judicata. See Gonzalez v. Deutsche Bank Nat. Tr.
Co., 632 Fed.Appx. 32 (2d Cir. 2016); Gordon v.
Ocwen Loan Servicing, 2016 WL 1305108, at *1 (D. Conn.
troubled as well by plaintiffs' failure to have promptly
served their complaint on the defendants during the six weeks
that have elapsed since plaintiffs first filed this action in
federal court. Plaintiffs instead have waited until the
holiday eve of the foreclosure sale to seek extraordinary
injunctive relief. The grant of a temporary restraining order
is a discretionary equitable remedy, and to the extent that
plaintiffs have been less than diligent in prosecuting this
federal court action, this is an additional reason why
equitable relief is not warranted at this time.
foregoing reasons, plaintiffs' motion for a temporary
restraining order (Doc. #7) is DENIED without prejudice in
the event that plaintiffs are able to show a likelihood of
success that ...