Swanson v. Wilford

• Decision Date: 29 January 2019
• Docket Number: File No. 19-cv-117 (DWF/LIB)
• Parties: Christopher Swanson, Plaintiff, v. Wilford, Geske, & Cook, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

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

File No. 19-cv-117 (DWF/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

January 29, 2019

REPORT AND RECOMMENDATION

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 hisComplaint. (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 (8th Cir. 2011). A temporary restraining order or preliminary injunction cannot issue if the movant fails to demonstrate a likelihood of success on the merits. See, Beeks v. CitiMortgage, Inc., No. 14-cv-4603 (MJD/HB), 2014 WL 5704205, at *5 (D. Minn. Nov. 5, 2014); Wickner v. Larson, No. 9-cv-940 (DWF/JJK), 2010 WL 98940, at *3 (D. Minn. Jan. 11, 2010) (quoting Mid-Am. Real Estate Co. v. Iowa Realty Co., 406 F.3d 969, 972 (8th Cir. 2005)).

While the Court is required to construe the content within Plaintiff pleadings liberally as he is proceeding pro se, Plaintiff is nevertheless bound by applicable procedural and substantive law. See, Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015); Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004); Farnsworth v. City of Kansas City, Mo., 863 F.2d 33, 34 (8th Cir. 1988).

B. Analysis

On the first factor of whether or not to issue a temporary restraining order, the Court in Dataphase "rejected the notion that the party seeking relief must show 'a greater than fifty percent likelihood that he will prevail on the merits,' holding instead that 'where the balance of other factors tips decidedly toward plaintiff a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation." Planned Parenthood Minn. N.D., S.D. v. Rounds, 530 F.3d 724, 731 (8th Cir. 2008) (citing Dataphase, 640 F.2d at 113). Thus, the Eighth Circuit has instructed district courts considering this factor to query whether the moving party has a "fair chance of prevailing." Id. at 732. Accordingly, the Court will consider each of Plaintiff's asserted causes of action to determine whether or not he has demonstrated a "fair chance of prevailing" on his causes of action.⁵

i. Federal Wire Fraud Laws

Plaintiff asserts that Defendants violated certain "federal wire fraud laws." (Plf. Mot., [Docket No. 2], at 5). Plaintiff contends that Defendants "used wire communications, including but not limited to facsimile's [sic], emails, and the internet to accomplish their scheme to defraud" Plaintiff "by causing to be sent, filed, and recorded mortgage documents which they knew or should have known to be fraudulent in violation of 18 U.S.C. Sec. 1343." (Id.). Plaintiff also asserts that Defendants used the "U.S. Mail more than twice to collect an unlawful debt." (Id. at 10). Plaintiff alleges that due to Defendants violations Plaintiff is entitled to "relief under 'Civil RICO' Federal Racketeering laws (Title 18 U.S.C. 1964)." (Id.).

Liberally construing Plaintiff's allegations,...