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Asiel-Dey v. Augusta Mortgage Co.

United States District Court, S.D. Georgia, Augusta Division

February 10, 2017

NEGUS KWAME FAHIM ASIEL-DEY, aka, Ronnie-Theodis Demmons Plaintiff,
v.
AUGUSTA MORTGAGE COMPANY; WELLS FARGO BANK, N.A.; and UNRUH INVESTMENTS, LLC, Defendants.

          ORDER

          HON. J. RANDAL HALL, UNITED STATES DISTRICT JUDGE

         Presently before the Court is Plaintiff's motion for a temporary restraining order, or, in the alternative, a preliminary injunction. (Doc. 6.) Plaintiff claims to challenge a foreclosure on the grounds that Defendants violated several federal laws related to debt-collection practices. Based upon Plaintiff's evidence, however, it appears that Plaintiff is actually requesting this Court to enjoin the execution of a dispossessory action successfully brought in state court. After carefully reviewing Plaintiff's request, the Court DENIES Plaintiff's motion.

         I. Background

         On March 9, 2005, Plaintiff signed a promissory note to Augusta Mortgage Company and offered as collateral a security deed in his property at 2907 Arrowwood Circle, Hephzibah, Georgia 30815. On January 5, 2016, Plaintiff received notice that his house would be auctioned at a foreclosure sale at the Richmond County Courthouse on February 2, 2016. On January 30, Plaintiff mailed a "Notice of Dispute" to Phelan Hallinan Diamond & Jones, the company responsible for handling the foreclosure proceedings on behalf of Wells Fargo, N.A., the owner of Plaintiff's mortgage. Then, on February 2, 2016, Unruh Investments, LLC purchased Plaintiff's property at the Richmond County Courthouse during legal hours.

         The foreclosure of Plaintiff's property, however, was not the end of the story. Plaintiff's documents indicate that he retained possession of the property as a tenant after foreclosure. The Court makes this inference based upon the fact that Unruh Investments, LLC filed a Dispossessory Affidavit with the Magistrate Court of Richmond County, Georgia for eviction from the same property on September 1, 2016. Plaintiff includes no further documentation detailing the proceedings of the dispossessory actions in state court.

         Plaintiff filed suit in this Court on February 7, 2017, requesting various injunctive and statutory relief, including restraining each Defendant "from commencing any action against the Consumer for recovery of the property." On February 9, 2017, at 9:02 a.m. Plaintiff filed a motion for an emergency temporary restraining order on the basis that he was to be evicted from his property at 9 a.m. that very morning.

         II. Discussion

         Under Rule 65(b), a court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if "specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed.R.Civ.P. 65. Granting a temporary restraining order or preliminary injunction is only proper if the moving party establishes the following four 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.

Schmitt v. Reimer, No. 1:10-cv-102, 2010 WL 3585187, at *1 (S.D. Ga. Sept. 14, 2010) (quoting Schiavo v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005)).

         "Both temporary restraining orders and preliminary injunctions are extraordinary remedies that are *not to be granted unless the movant clearly establishes the burden of persuasion as to each of the four prerequisites.'" Id. (quoting Redford v. Gwinnett Jud. Cir., 350 F.App'x. 341, 345 (11th Cir. 2009)); see also United States v. Jefferson Cty., 720 F.2d 1511, 1519 (11th Cir. 1983) ("The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movantAclearly carries the burden of persuasion' as to the four prerequisites."). The grant or denial of a preliminary injunction is a matter within the discretion of the district court. Jefferson Cty., 720 F.2d at 1519.

         Plaintiff s request for a temporary restraining order and his request for an injunction fail for two reasons. First, Plaintiff has failed to convince this Court that it has jurisdiction to enjoin Defendants' actions. Second, Plaintiff has not established a sufficient likelihood of success on the merits.

         A. ...


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