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Wilson v. GMFS, LLC

United States District Court, M.D. Louisiana

March 12, 2019




         Before the Court is Plaintiffs Verified Emergency Petition for Temporary Restraining Order and/or Preliminary Injunction, and Declaratory Relief (Doc. 19). The Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1331. Oral argument is not required. For the reasons stated below, Plaintiffs motion is DENIED.


         Murphy J. Wilson ("Plaintiff') alleges that his house will be sold "within the next week" and seeks a temporary injunction on the sale to maintain the status quo and avoid eviction. (Doc. 19 at p. 1). Plaintiff accuses GMFS, LLC, Specialized Loan Servicing, LLC; Federal Home Loan Mortgage Corporation, Issuing Entity Trust Freddie Mac Multiclass Certificates, Series 4710, John Doe 1, and Does 1-100, inclusive ("Defendants") of "selling [him] a loan product that [Defendants] knew or should have known [he] would never be able to fully pay back." (Doc. 19 at p. 4). Specifically, Plaintiff claims that on or about July 31, 2017, he executed a consumer credit transaction with GMFS, LLC by obtaining a $313, 555.00 mortgage loan secured by Plaintiffs residence, 3282 Meadow Grove Avenue, Zachary, Louisiana 70791. (Id.). Plaintiff further alleges that the note was secured by a deed made out to GMFS, LLC. (Id.). Plaintiff claims generally that the terms of the transaction are not clear, and are "illegal" and violative of "several statutes."[1] (Id.). Plaintiff also alleges that the loan was underwritten without GMFS having done due diligence to verify Plaintiffs income. (Id.). The result of these actions, according to Plaintiff, is that GMFS, LLC "illegally, deceptively, or otherwise unjustly" qualified Plaintiff for a loan that GMFS, LLC knew or should have known Plaintiff could never repay. (Id.).


         A. Injunctive Relief

         "A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right." Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations and quotations omitted). See also Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989) (preliminary injunctive relief "is an extraordinary remedy and should be granted only if the movant has clearly carried the burden of persuasion with respect to all four factors"); Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985) ("[t]he decision to grant a request for preliminary injunction is to be treated as the exception rather than the rule"). The decision whether to grant or deny a request for a preliminary injunction is within the sound discretion of the Court. See Allied Mlttg. Grp., Inc., 878 F.2d at 809. At all times, the burden of persuasion remains with Plaintiff as to each of the four elements. Specifically, a Plaintiff must establish: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest. See Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008). If a plaintiff fails to meet his burden regarding any of the necessary elements, the Court need not address the other elements necessary for granting a preliminary injunction. See Roho, Inc. v. Marquis, 902 F.2d 356, 261 (5th Cir. 1990) (declining to address the remaining elements necessary to obtain a preliminary injunction after finding that the plaintiff failed to show a substantial likelihood of success on the merits).

         B. Service

         Federal Rule of Civil Procedure 5 sets forth the service requirements for any motion filed in federal court. Specifically, unless the Rules state otherwise, a written motion, except for those that may be heard ex parte, must be served on every party. Fed.R.Civ.P. 5(a)(1)(D). A certificate of service is also required to be included with any filings not submitted to the Court by way of electronic filing. Fed.R.Civ.P. 5(d)(1)(B).


         Fed. R. Civ. P. 65 provides:

The Court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) 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; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it ...

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