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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

TANIA M. MARTIN-MERCADO,

 Plaintiff,

v.

WELLS FARGO BANK, N.A., et al.,

 Defendants.

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Civil Action No. 4:23-cv-743-SDJ-KPJ

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Plaintiff Tania M. Martin-Mercado’s (“Plaintiff”) Motion for 

Temporary Restraining Order (the “TRO Motion”) (Dkt. 7) filed August 23, 2023, wherein 

Plaintiff requests a temporary restraining order (“TRO”) to prevent Defendants UMB Bank 

National Association, not in its individual capacity, but solely as legal title trustee for LVS Title 

Trust XIII (“UMB”), and Rushmore Loan Management Services, LLC (“Rushmore”) from 

proceeding with a foreclosure sale of Plaintiff’s property, 3312 Shadow Wood Circle, Highland 

Village, Texas 75077 (the “Property”), on September 5, 2023.1See id. at 5–6. For the reasons that 

follow, the Court recommends the TRO Motion (Dkt. 7) be DENIED AS MOOT.

I. BACKGROUND

On July 12, 2023, Plaintiff filed her petition (the “Petition”) (Dkt. 3) in the 362nd Judicial 

District Court, Denton County, Texas against Defendants Wells Fargo Bank, N.A. (“Wells 

Fargo”), UMB, and Rushmore (together, “Defendants”) for breach of contract, failure of condition 

precedent, common law fraud, violations of Real Estate Settlement Procedures Act (“RESPA”)

1 Plaintiff styles her TRO Motion (Dkt. 7) as one made “ex parte.” However, attached to the TRO Motion (Dkt. 7) is 

a Certificate of Service and Certificate of Conference, in which Plaintiff represents that she served the TRO Motion

(Dkt. 7) and attempted to confer with UMB and Rushmore. See id. at 7.

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and Regulation X of the Code of Federal Regulations, and violations of the Texas Fair Debt 

Collection Practices Act. See Dkt. 3 at 19–20. On August 16, 2023, UMB and Rushmore removed 

this action to federal court pursuant to 28 U.S.C § 1331. See Dkt. 1 at 1.

On August 22, 2023, U.S. District Judge Sean D. Jordan referred this matter to the 

undersigned for all pretrial proceedings. See Dkt. 6 at 1. On August 23, 2023, Plaintiff filed the 

TRO Motion (Dkt. 7) requesting a TRO to enjoin UMB and Rushmore from conducting a 

foreclosure sale of the Property on September 5, 2023, because “[t]here is no adequate remedy at 

law available to Plaintiff, as legal remedies against these Defendants will be illusory because these 

Defendants intend to proceed with the foreclosure sale of . . . [the Property], which is unique and 

irreplaceable.” Id. at 4. On August 23, 2023, the Court ordered UMB and Rushmore to file an 

expedited response to the TRO Motion (Dkt. 7) by August 25, 2023, at 12:00 p.m. See Dkt. 8 at 1. 

On August 25, 2023, UMB and Rushmore filed a response (Dkt. 9) “stipulat[ing] that they will not 

proceed with a foreclosure sale on September 5, 2023, as had been previously noticed” and arguing 

that Plaintiff’s requested relief is now moot. Id. at 1–2.

II. LEGAL ANALYSIS

A party seeking a temporary restraining order (“TRO”) or preliminary injunction must 

demonstrate: (1) a substantial likelihood of success on the merits; (2) a likelihood the movant will 

suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the 

movant’s favor; and (4) an injunction is in the public interest. See Tex. Midstream Gas Servs., LLC 

v. City of Grand Prairie, 608 F.3d 200, 206 (5th Cir. 2010) (quoting Winter v. Nat. Res. Def. 

Council, 555 U.S. 7, 21 (2008)). The movant has the burden of introducing sufficient evidence to 

justify the granting of a preliminary injunction or temporary restraining order. See PCI Transp., 

Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 546 (5th Cir. 2005). Injunctive relief “should only 

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be granted if the movant has clearly carried his burden of persuasion on all four factors.” ADT, 

LLC v. Cap. Connect, Inc., 145 F. Supp. 3d 671, 681 (N.D. Tex. 2015) (citing Miss. Power & Light

v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)). The decision to grant or deny an 

injunction is “left to the sound discretion of the district court.” Id. (citing Miss. Power & Light, 

760 F.2d at 621).

In the present case, Plaintiff’s requested relief—an enjoinment of the foreclosure sale on 

September 5, 2023—is now moot, as UMB and Rushmore stipulate that they have canceled the

noticed sale. See Bejjani v. Wilmington Tr. Co., No. H-10-2727, 2011 WL 3667569, at *6 (S.D. 

Tex. Aug. 22, 2011) (finding “request for injunctive relief is moot because the anticipated 

foreclosure sale was cancelled” (citing Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 326

(Tex. App.—Houston [14th Dist.] 2009, pet. denied))); Harris v. Cenlar FSB, No. 4:19-CV00639-P, 2019 WL 5578572, at *6 (N.D. Tex. Oct. 29, 2019) (same).

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As there is no longer the threat of irreparable harm in the absence of preliminary relief, 

Plaintiff cannot demonstrate all the required elements necessary for a TRO. This action may

therefore proceed with the adjudication of Plaintiff’s claims.

III. RECOMMENDATION

For the foregoing reasons, the Court recommends the TRO Motion (Dkt. 7) be DENIED 

AS MOOT.

2 Dismissing injunctive relief as moot could present a situation that is capable of repetition, yet evading review because

Defendants could later foreclose on the Property despite their stipulation “that they will not proceed with a foreclosure 

sale.” Dkt. 9; see McCullough v. Wells Fargo Bank, N.A., No. 5:18-CV-01066-FB, 2019 WL 612995, at *6 

(W.D. Tex. Jan. 15, 2019) (quoting DeFunis v. Odegaard, 416 U.S. 312, 318–19 (1974)), R. & R. adopted, 2019 WL 

609766 (W.D. Tex. Feb. 6, 2019). However, if this threat arises, Plaintiff is free to seek injunctive relief once again.

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Within fourteen (14) days after service of the magistrate judge’s report, any party may 

serve and file written objections to the findings and recommendations of the magistrate judge. 

28 U.S.C. § 636(b)(1)(C).

A party is entitled to de novo review by the district court of the findings and conclusions 

contained in this report only if specific objections are made, and failure to timely file written

objections to any proposed findings, conclusions, and recommendations contained in this report 

shall bar an aggrieved party from appellate review of those factual findings and legal conclusions 

accepted by the district court, except on grounds of plain error, provided that the party has been 

served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 

474 U.S. 140, 148 (1985); see also Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) 

(extending the time to file objections from ten to fourteen days).

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