United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge.
the court is Plaintiff's Emergency Motion for Temporary
Restraining Order (“Motion”) (Doc. 11), filed
August 30, 2017. After considering Plaintiff's motion,
Defendants' response, the evidence, and applicable law,
the court denies Plaintiff's Emergency Motion for
Temporary Restraining Order (Doc. 11).
Factual and Procedural Background
2, 2017, Denise McNamara (“Plaintiff”) originally
filed this action in the 134th District Court of Dallas
County, Texas, against Wilmington Trust, NA, Trustee for MFRA
Trust 2015-1, Fay Servicing, L.L.C., and Shelley Ortolani
(“Defendants”) to prevent a June 6, 2017
foreclosure sale on Plaintiff's residence by Defendants.
Plaintiff and her husband, Timothy McNamara, are the owners
of the house and lot located at 5906 Yardley Court, Dallas,
Texas (the “Property”). The foreclosure action
was initiated because of Timothy McNamara's undisputed
mortgage defaults. Timothy McNamara (“Borrower”)
is the borrower under the subject mortgage. Borrower is past
due for the March 1, 2010 payment and all subsequent
payments. Borrower is not a party to this lawsuit.
state action, Plaintiff sought monetary damages and
injunctive relief to prevent Defendants from foreclosing on
the Property. On June 6, 2017, the state court granted
Plaintiff's request for temporary restraining order that
prevented a foreclosure sale on the Property. A hearing
regarding Plaintiff's request for a temporary injunction
was set for June 20, 2017, at 9:00 AM. On June 19, 2017,
Defendants filed their Notice of Removal and removed the
action to federal court.
to this lawsuit, Plaintiff filed a lawsuit in McNamara et
al. v. JPMorgan Chase Bank, NA et al. (Case No.
3:12-CV-03731-P) in an attempt to prevent a foreclosure sale
on the Property following Borrower's mortgage default.
The case was dismissed by summary judgment. McNamara v.
JPMorgan Chase Bank, N.A., No. 3:12-CV-3731-P, 2014 WL
12531109 (N.D. Tex. Apr. 30, 2014). Following the dismissal
of that case, Plaintiff initiated two bankruptcy proceedings
that prevented a foreclosure sale on the Property. Following
the second bankruptcy case, Plaintiff initiated this lawsuit.
Standard for Preliminary Injunction or Temporary Restraining
Order There are four prerequisites for the
extraordinary relief of preliminary injunction or TRO.
may grant such relief only when the movant establishes that:
(1) there is a substantial likelihood that the movant will
prevail on the merits; (2) there is a substantial threat that
irreparable harm will result if the injunction is not
granted; (3) the threatened injury [to the movant] outweighs
the threatened harm to the defendant; and (4) the granting of
the preliminary injunction will not disserve the public
Clark v. Prichard, 812 F.2d 991, 993 (5th Cir.
1987); Canal Auth. of the State of Florida v.
Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en
banc). The party seeking such relief must satisfy a
cumulative burden of proving each of the four elements
enumerated before a TRO or preliminary injunction can be
granted. Mississippi Power and Light Co. v. United Gas
Pipeline, 760 F.2d 618, 621 (5th Cir. 1985);
Clark, 812 F.2d at 993. Otherwise stated, if a party
fails to meet any of the four requirements, the
court cannot grant the TRO or preliminary injunction.
considering these four requirements and deciding whether to
grant injunctive relief, courts must keep in mind that the
granting of a TRO or preliminary injunction “is an
extraordinary and drastic remedy which should not be granted
unless the movant clearly carries the burden of persuasion,
” and a TRO or preliminary injunction is necessary
“to preserve the court's ability to render a
meaningful decision on the merits.” Callaway,
489 F.2d at 573. Thus, “only those injuries that cannot
be redressed by the application of a judicial remedy after a
hearing on the merits can properly justify a preliminary
injunction [or TRO].” Id.
has not satisfied all four requirements for the issuance of a
TRO. The court first considers whether Plaintiff has shown a
substantial likelihood of success on the merits. Plaintiff
alleges a cause of action for wrongful foreclosure. Plaintiff
has not alleged any defect in the foreclosure notices, and
there is no evidence or allegation that Plaintiff has lost
possession of the Property. Under Texas law, there is no
cause of action for wrongful foreclosure if the mortgagor
does not lose possession of the home. Sevilla v. Federal
Nat'l Mortg. Ass'n, No. 3:15-CV-3594-B, 2017 WL
697783, at *6 (N.D. Tex. Feb. 22, 2017) (citing Baker v.
Countrywide Home Loans, Inc., 3:08-CV-0916-B, 2009 WL
1810336, at *4 (N.D. Tex. June 24, 2009) (citing Peterson
v. Black, 980 S.W.3d 818, 823 (Tex. App.-San Antonio
1998, no pet.)). Therefore, Plaintiff cannot recover on a
theory of wrongful foreclosure, and she fails to establish a
substantial likelihood of success on the merits.
court next considers whether Plaintiff has shown there is a
substantial threat that irreparable harm will result if a TRO
is not granted. Defendants filed their Notice of Removal on
June 19, 2017; Plaintiff did not file her Emergency Motion
for Temporary Restraining Order until August 30, 2017. This
unexplained delay undercuts Plaintiffs assertion that there
is either an immediate or substantial threat that irreparable
harm will result if the requested injunctive relief is not
granted. Talon Transaction Techs., Inc. v. StoneEagle
Servs., Inc., No. 3:13-CV-00902-P, 2013 WL 12173219, at
*2 (N.D. Tex. July 24, 2013) (A delay in seeking a remedy is
an important factor when considering the requirements for
injunctive relief.) (citing GoNannies, Inc. v.
GoAuPair.com, Inc.,464 F.Supp.2d 603, 609 (N.D. Tex.
2006)). The party seeking extraordinary relief of a
preliminary injunction or TRO must satisfy each of the four
elements for a TRO. The court need not discuss the ...