UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID W. DEWALD,

Plaintiff, Civil Action No. 14-CV-13680

vs. HON. BERNARD A. FRIEDMAN

CHRISTIANA TRUST,

Defendant.

____________________/

OPINION AND ORDER DENYING PLAINTIFF’S

MOTION FOR A TEMPORARY RESTRAINING ORDER

This matter is presently before the Court on plaintiff’s “emergency ex-parte motion

for a temporary restraining order,” which he filed in state court before the case was removed. 

Defendant has not responded, and it is not required to do so as the motion was filed ex parte. 

Pursuant to E.D. Mich. LR 7.1(f)(2) and 65.1, the Court shall decide this motion without a hearing.

This is a “wrongful foreclosure” action. Plaintiff alleges that he defaulted on his

mortgage loan in 2009, that the prior note holder commenced foreclosure proceedings in 2010, and

that plaintiff has “on numerous occasions with various entities to which whom [sic] claimed to be

the holder of the note attempted to procure a loan modification” without success. Comp. ¶¶ 8-15. 

Plaintiff further alleges that defendant was assigned the mortgage in November 2013 and

recommenced foreclosure proceedings in January 2014. Id. at ¶¶ 16-17. Defendant purchased the

mortgaged property at the sheriff’s sale in February 2014, after offering plaintiff a “trial loan

modification” that required higher monthly payments than were required under the original terms

($8,578.00 as compared to $5,800.56 monthly). The complaint asserts two claims. Count I claims

that defendant violated Mich. Comp. Laws § 600.3205 by “fail[ing] to hold any loan mediation” and

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by failing “to provide [plaintiff] with the outcome of its calculations.” Id. ¶¶ 25-26. Count II claims

defendant “breached its duty of good faith in dealing by offering a ‘trial modification’ that was . .

. unreasonable.” Id. ¶ 32. For relief, plaintiff asks that the Court declare the foreclosure and

sheriff’s sale void and award fees and costs. In his motion for a TRO, plaintiff asks that the Court

stop eviction proceedings while this case is pending.

As this Court recently noted,

Temporary restraining orders and preliminary injunctions are

extraordinary remedies designed to protect the status quo pending

final resolution of a lawsuit. See University of Texas v. Camenisch,

451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). Whether to

grant such relief is a matter within the discretion of the district court.

Certified Restoration Dry Cleaning Network, L.L. C. v. Tenke Corp.,

511 F.3d 535, 540 (6th Cir. 2007). The same factors are considered

in determining whether to grant a request for either a temporary

restraining order or a preliminary injunction. See Sandison v.

Michigan High School Athletic Assoc., 64 F.3d 1026, 1030 (6th Cir.

1995). The four factors that must be balanced and considered before

the court may issue a temporary restraining order or preliminary

injunction include: (1) the likelihood of the plaintiff's success on the

merits; (2) whether the plaintiff will suffer irreparable injury without

the injunction; (3) the harm to others which will occur if the

injunction is granted; and (4) whether the injunction would serve the

public interest. Certified Restoration, 511 F.3d at 542; In re

Eagle–Pitcher Industries, Inc., 963 F.2d 855, 858 (6th Cir. 1992);

and N.A.A.C.P. v. City of Mansfield, Ohio, 866 F.2d 162, 166 (6th

Cir. 1989).

“None of these factors, standing alone, is a prerequisite to

relief; rather, the court should balance them.” Golden v.

Kelsey–Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996). Preliminary

injunctive relief “is an extraordinary measure that has been

characterized as ‘one of the most drastic tools in the arsenal of

judicial remedies.’” Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir.

2001).

Global Generation Group, LLC v. Mazzola, 2014 WL 1772417, at **2-3 (E.D. Mich. May 2, 2014). 

In the present case, plaintiff has shown neither a likelihood of success on the merits

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nor a threat of immediate, irreparable injury. Under Michigan law, a plaintiff challenging

foreclosure “must act promptly after he becomes aware of the facts upon which he bases his

complaint.” Kuschinski v. Equitable & Central Trust Co., 277 Mich. 23, 26, 268 N.W. 797 (1936).

See also Day Living Trust v. Kelley, 2013 WL 2459874, at *9 (Mich. App. June 6, 2013) (“Our

Supreme Court has repeatedly held that a mortgagor must challenge the validity of a foreclosure by

advertisement promptly and without delay.”). In the present case, plaintiff sat on his rights for

months and did not commence the instant action until the last day of the six-month redemption

period. This is the very antithesis of prompt action. Voiding a foreclosure is an equitable remedy

and it is unavailable to a party, such as plaintiff, who delays unduly in seeking relief. See, e.g., Kim,

493 Mich. at 121, 825 N.W.2d 329 (Markman, J., concurring); Kuschinski; Lewis v. Citimortgage,

Inc., 2013 WL 5566703, at *3 (E.D. Mich. Oct. 9, 2013).

Moreover, even assuming, as plaintiff alleges, that defendant failed to comply with

the statutory requirements of the loan modification process, plaintiff’s exclusive remedy under the

statute was to “file an action in the circuit court for the county where the mortgaged property is

situated to convert the foreclosure proceeding to a judicial foreclosure.” Mich. Comp. Laws §

600.3205c(8). Plaintiff forfeited this remedy by waiting to file suit until after the sheriff’s sale had

taken place and after the redemption period had nearly expired. It is not longer possible to “covert

the foreclosure proceeding to a judicial foreclosure,” as the foreclosure by advertisement proceeding

is complete and title has vested in the holder of the sheriff’s deed. See Steinberg v. Fed. Home Loan

Mortgage Corp., 901 F. Supp. 2d 945, 952-53 (E.D. Mich. 2012); Adams v. Wells Fargo Bank, 2011

WL 3500990, *4 (E.D. Mich. Aug. 10, 2011).

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For these reasons, the Court concludes that plaintiff has not shown a likelihood of

success on the merits. To the contrary, his chances of success appear to be very slim indeed. In

addition, plaintiff has not shown that the irreparable harm he fears (eviction) is imminent. As this

Court noted recently in a similar case:

In this case, Farrell has not met his burden of demonstrating

that he is entitled to a temporary restraining order. First, although

Farrell asserts in his motion that he and his family will suffer

immediate and irreparable harm if they are evicted from their home

(Doc. # 5 at 12), Farrell has not asserted that any such eviction is

imminent (or even scheduled). Indeed, in his motion, Farrell indicates

that he filed his motion for temporary restraining order to “stop all

actions of defendants against him including attempted re-issuance of

an order of eviction from 52–3 District Court in Rochester Hills” (id.

at 1), which suggests that no order of eviction has yet been issued by

that court and, as a result, that no eviction is imminent. Farrell did not

include in either his verified complaint, or in the affidavit attached to

his motion, specific facts demonstrating that he will suffer immediate

and irreparable harm before the defendants can be heard in opposition

to this motion, as required by Fed.R.Civ.P. 65(b)(1) (A). Moreover,

while eviction has sometimes been construed as “irreparable harm”

for purposes of a preliminary injunction, see Sayo, Inc. v. Zions First

Nat’l Bank, 2006 WL 3240706, at *2 (E.D.Mich. Nov.7, 2006)

(holding that plaintiff would suffer irreparable harm if evicted from

his home, which was his last remaining asset), Farrell has not

provided evidence, such as an eviction notice or other court order,

from which the Court can conclude that eviction is actually imminent.

Accordingly, “the court cannot conclude that danger is so immediate

to necessitate a [temporary restraining order] without an opportunity

for the Defendants to be heard.” Jackson v. U.S. Bank Loan

Servicing, 2009 WL 2447485, at *3 (E.D.Mich. Aug.6, 2009)

(finding that the court could not conclude danger was immediate

where plaintiff failed to provide an eviction notice).

Farrell v. U.S. Bank Nat’l Ass’n, 2014 WL 2480055, at *2 (E.D. Mich. June 3, 2014) (footnotes

omitted). Plaintiff similarly fails to show that his eviction is imminent or that eviction constitutes

irreparable injury. Accordingly,

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IT IS ORDERED that plaintiff’s motion for a temporary restraining order is denied.

S/ Bernard A. Friedman___________

BERNARD A. FRIEDMAN

SENIOR UNITED STATES DISTRICT JUDGE

Dated: September 29, 2014

Detroit, Michigan

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