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Nembhard v. Barrett Daffin Frappier Levin & Block, LLP

United States District Court, N.D. Georgia, Atlanta Division

March 6, 2017

LORNA NEMBHARD, Plaintiff,
v.
BARRETT DAFFIN FRAPPIER LEVINE & BLOCK, LLP, JP MORGAN CHASE BANK, NATIONAL, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff Lorna Nembhard's (“Plaintiff”) “Emergency Injunction to Halt Wrongful Foreclosure and Request to Produce Original Note, with Mortgage Schedules, Warranty Deed, Land Titles With All Endorsements from Level III Audit, ” contained in her Complaint [1].

         I. BACKGROUND

         On November 29, 1996, Plaintiff obtained a loan in the amount of $68, 967.00 from Fidelity National Mortgage Corporation (“Fidelity National”). (Security Deed [1.4] at 2). Repayment of the loan was secured by a deed (“Security Deed”) to real property located at 6422 Wedgeview Drive, Tucker, Georgia (the “Property”). (Id.). Under the terms of the Security Deed, Plaintiff “grant[ed] and convey[ed] to [Fidelity National] and [Fidelity National's] successors and assigns, with power of sale, the [Property].” (Id.).

         On May 14, 2016, Fidelity National assigned its rights under the Security Deed to Chase Manhattan Mortgage Corporation (“Chase Manhattan”).[1](Assignment [1.2]).

         At some point, it appears that Plaintiff defaulted on her loan obligations.

         On March 1, 2017, Plaintiff, proceeding pro se, filed her Complaint, asserting claims for “[c]ommon law mortgage fraud, ”[2] (Count 1), Lack of Standing (Count 2), “[v]iolations to [sic] Federal and State Laws” (Count 3), and “fraudulent practices” (Count 4). Plaintiff also appears to assert claims for violation of the Real Estate Settlement Procedures Act (“RESPA”) and violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. The crux of Plaintiff's claims is that Defendants JPMorgan Chase Bank National (“JPMorgan”) and Barrett Daffin Frappier Levine & Block, LLP (together, “Defendants”) lack standing to foreclose on the property based on perceived defects in the assignment and the transfer of her mortgage. Plaintiff seeks injunctive relief, compensatory and punitive damages, attorney's fees and litigation costs. Plaintiff also seeks a declaration that “Plaintiffs [sic] []have the right to not be given misleading and fraudulent information from JPMorgan Chase Bank claiming to have authority in servicing rights.” (Compl. at 37).

         Plaintiff's Complaint also appears to include a request for preliminary injunctive relief, “to halt all commencing actions executed outside the statutes and Rule of Law [sic] that deprives Plaintiff of a State liberty interest regarding wrongful foreclosure injuriously instituted [sic] . . . .” (Compl. at 10-11).

         II. DISCUSSION

         A. Legal Standard for Preliminary Injunctive Relief

         To be eligible for a temporary restraining order (“TRO”) or preliminary injunctive relief under Rule 65 of the Federal Rules of Civil Procedure, a movant must show: (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 Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005); Parker v. State Bd. of Pardons and Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001).

         Preliminary injunctive relief is a drastic and extraordinary remedy which should not be granted unless the movant can clearly establish each of the four elements. Four Seasons Hotels and Resorts v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003).

         The elements for a TRO are essentially the same as for a preliminary injunction, except that “[t]he motion must be supported by allegations ... that such [irreparable] injury is so imminent that notice and hearing would be impractical if not impossible.” Hernandez v. Board of Regents, 1997 WL 391800, *1 (M.D. Fla. 1997) (quoting Chase Manhattan Bank v. Dime Savings Bank of New York, 961 F.Supp. 275, 276 (M.D. Fla. 1997)). Fundamentally, TROs are “designed to preserve the status quo until there is an opportunity to hold a ...


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