Levins v. Deutsche Bank Trust Co. Ams.

• Decision Date: 25 January 2013
• Docket Number: CIVIL ACTION 13-0035-WS-M
• Parties: LEBARRON T. LEVINS, Plaintiff, v. DEUTSCHE BANK TRUST COMPANY AMERICAS, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

LEBARRON T. LEVINS, Plaintiff,

v.DEUTSCHE BANK TRUST COMPANY AMERICAS, et al., Defendants.

CIVIL ACTION 13-0035-WS-M

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE and ORDERED: January 25, 2013

ORDER

This newly-filed civil action comes before the Court on the "Motion for Emergency Hearing" (doc. 3) filed by plaintiff, Lebarron T. Levins, who is proceeding pro se¹

I. Relevant Background.

On the afternoon of January 24, 2013, Levins filed a 21-page, 11-count (and apparently attorney-drafted) Complaint (doc. 1) against named defendants Deutsche Bank Trust CompanyAmericas as Trustee for RALI 2004-QS-2; Mortgage Electronic Registration Systems of America, Inc.; and GMAC Mortgage, LLC. The Complaint purports to bring a variety of damages claims against all defendants sounding in theories of fraud, violation of the National Housing Act, "HUD violations," "unfair and unacceptable loan servicing," "wrongful conduct," violation of the Truth in Lending Act, wrongful foreclosure, and "unfair debt collection." In addition to these many damages claims, the Complaint purports to state a claim for "Emergency Temporary and Permanent Injunctive Relief." In support of this claim, Levins alleges that "unless an emergency temporary injunction against the foreclosure sale set for January 28, 2013 is not [sic] granted, Plaintiff will suffer the irreparable injury, loss, and damage of the loss of his Property." (Doc. 1, ¶ 30.) Plaintiff contends that the foreclosure must be halted because "Defendants have no legal standing to initiate and/or maintain a foreclosure of the property." (Id., ¶ 31.)

Accompanying Levins' Complaint is a "Motion for Emergency Hearing," wherein plaintiff reiterates and elaborates on his request for emergency injunctive relief. According to the Motion, Levins' position is that defendant Deutsche Bank lacks standing to foreclose on his mortgage. Attached to Levins' Complaint as Exhibit C is an "Assignment of Mortgage" dated September 20, 2012, specifying that defendant Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Homecomings Financial Network, Inc. (the original lender), "hereby grants, assigns and transfers to Deutsche Bank ... all beneficial interest under" the mortgage executed by Levins on February 2, 2004. In his Motion, Levins alleges that "MERS for a number of reasons ... is legally barred from making the assignment;" that he believes the assignment to have been "robo-signed" because it was notarized by someone in Ramsey County, Minnesota; and that the assignment "appears to transfer the Mortgage to the RALI 2004-QS2 Trust after the trust was closed." (Doc. 3, at ¶ 13.) Levins also cites his "belief and contention that none of the Defendants are in possession of his 'wet-inked' signed Note and Mortgage, have never been legally assigned the rights there under and, therefore, do not have the authority to foreclose on the subject Property." (Id., ¶ 14.) On that basis, plaintiff requests an "Emergency Temporary Restraining Order and/or Preliminary Injunction to prevent the foreclosure of Plaintiff's property, currently scheduled for January 28, 2013." (Id. at 7.)

The documents filed by Levins reflect that the only notice he has furnished to defendants that he has applied in this District Court for a temporary restraining order to enjoin them fromcarrying out the scheduled foreclosure sale is that on January 24, 2013, he mailed copies of the Motion via U.S. First Class Certified Mail to defendant Deutsche Bank's chief financial officer in New York and to its attorney in Birmingham, Alabama; and to defendants MERS and GMAC Mortgage via letters addressed to their registered agents in Montgomery, Alabama.

II. Analysis.

To be eligible for a temporary restraining order or preliminary injunctive relief under Rule 65, a movant must establish each of the following elements: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. See Grizzle v. Kemp, 634 F.3d 1314, 1320 (11th Cir. 2011); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005). Preliminary injunctive relief "is an extraordinary and drastic remedy not to be granted unless the movant clearly established the 'burden of persuasion' as to each of the four prerequisites." Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000) (citations omitted); see also Forsyth County v. U.S. Army Corps of Engineers, 633 F.3d 1032, 1039 (11th Cir. 2011) (similar).

Levins' Motion for Emergency Hearing is insufficient to carry this heavy burden for at least three distinct reasons. First, plaintiff's notice to defendants (and principally Deutsche Bank) is woefully inadequate and unreasonable. Again, Levins is asking for this Court to enjoin and restrain Deutsche Bank from foreclosing on his property on Monday, January 28, 2013. The only notice he has given Deutsche Bank of this legal maneuver comes in the form of service copies that he transmitted via U.S. Mail to offices in New York and Birmingham, Alabama on Thursday, January 24, 2013. Levins does not allege that he undertook any effort whatsoever to notify Deutsche Bank that he had moved for TRO against it by telephone, electronic mail, facsimile, or any method more immediate than mail, which bears a multiple-day lag. By the time Deutsche Bank and the other defendants receive the service copies plaintiff mailed to them, it will be too late for them to be heard on Levins' request that the January 28 foreclosure be halted.² Thus, for all practical purposes, Levins is seeking issuance of a TRO without affordingdefendants prior notice or a reasonable opportunity to be heard. Plaintiff has complied with neither of the requirements of Rule 65(b)(1), Fed.R.Civ.P., for issuance of a TRO without notice to defendants.³

In effect, then, Levins is seeking issuance of a TRO on an ex parte basis. The circumstances in which ex parte TROs may be entered are narrowly circumscribed. See, e.g., Reno Air Racing Ass'n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) ("courts have recognized very few circumstances justifying the issuance of an ex parte TRO"); First Technology Safety Systems, Inc. v. Depinet, 11 F.3d 641, 650 (6th Cir. 1993) ("The normal circumstance for which the district court would be justified in proceeding ex parte is where notice to the adverse party is impossible, as in the cases where the adverse party is unknown or is unable to be found. ... There is, however, another limited circumstance for which the district court may proceed ex parte: where notice to the defendant would render fruitless further prosecution of the action."). After all, Levins does not argue that he cannot find Deutsche Bank, nor could he reasonably so argue, given that he has apparently been actively communicating with it concerning the imminent foreclosure proceedings. And there is no suggestion that notice to defendants would render further action fruitless because, for instance, they would destroy evidence. This is simply not a case where issuance of an ex parte TRO is appropriate.⁴

Second, plaintiff's Motion for Emergency Hearing fails for the independent reason that Levins has failed to meet his burden of showing a likelihood of success on the merits. Plaintiff's theory for emergency injunctive relief is that Deutsche Bank lacks standing to foreclose on his property; however, he has not satisfied his burden of persuasion to establish that success on the merits is "likely or probable." United States v. Alabama, 2011 WL 4863957, *5 (11th Cir. Oct. 14, 2011) ("A substantial likelihood of success on the merits requires a showing of only likely or probable, rather than certain, success.") (citation omitted). Levins argues that MERS "is legally barred from making any Assignments" because MERS has not "ever held a beneficial interest in the Mortgage." (Doc. 1, ¶ 11.) But this contention is belied by the Mortage attached to the Complaint as Exhibit A, in which Levins agreed that he "irrevocably mortgages, grants and conveys to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, with power of sale, the following described property." (Doc. 1, Exh. A, at 6.) Because plaintiff's own documents demonstrate that he mortgaged the property to MERS at closing, he has not shown a substantial likelihood of success as to his contention that MERS lacked any interest in the mortgage and was therefore precluded from assigning same. As for plaintiff's theory that the Assignment must have been "robo-signed" because MERS' mailing address is in Flint, Michigan but the Assignment was notarized in Minnesota (doc. 1, ¶¶ 58, 59), Levins offers only his own naked conjecture (untethered to any facts whatsoever) that the MERS agent who executed the Assignmant on MERS' behalf and the notary public who notarized thatsignature were not present in the same place at the same time when they executed that document. Unvarnished speculation is not sufficient to satisfy Levins' heavy burden on an application for TRO. Similarly, Levins' suggestion that the Assignment is invalid because it "appears" to have transferred the mortgage to a trust that had been "closed" to the transfer of new mortgage loans is devoid of persuasive power on a Motion for TRO because (i) he has provided neither facts nor law to support it, and (ii) he fails to make any showing of when the note was transferred to the trust in question, and the note (not the mortgage) is the debt obligation. See Knowles v. HBSC Bank USA, 2012 WL 2153436, *2 n.4 (N.D. Ala. June 8, 2012) ("Clearly, the Note is the obligation to pay borrowed money, [while] the mortgage merely creates a lien against the property as security for that obligation."); ...