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No. 4:13-cv-0807-DGK





This case arises out of allegations that Defendant PHH Mortgage Corporation (“PHH”)

has intentionally and willfully wrongfully foreclosed on Plaintiff Matthew Stalker’s (“Stalker”)

home. Pending before the Court is Plaintiff’s motion for temporary restraining order1 (Doc. 5)

brought pursuant to Federal Rule of Civil Procedure 65(b). Stalker seeks a temporary restraining

order (“TRO”): (1) enjoining Defendant from “pursuing the removal of Plaintiff from his home

through Defendant’s unlawful detainer action against Plaintiff;” and (2) enjoining Defendant

from selling Plaintiff’s home. Finding Plaintiff has not established he will suffer an immediate

and irreparable injury, the motion is DENIED.

Federal Rule of Civil Procedure 65(b) provides that,

The court may issue a temporary restraining order without written or
oral notice to the adverse party or its attorneys 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 should not be required.

1 Although captioned a “Motion for Temporary Restraining Order/Preliminary Injunction with Memorandum and
Affidavits in Support” the Court construes it as a motion for temporary restraining order.

Case 4:13-cv-00807-DGK Document 9 Filed 09/20/13 Page 1 of 4

Fed. R. Civ. P. 65(b) (emphasis added). In determining whether to grant a temporary restraining

order, the Court considers (1) the threat of irreparable harm to the movant; (2) the balance

between this harm and any injury that granting the injunction will inflict on the non-moving

party; (3) the likelihood that the moving party will prevail on the merits; and (4) the public

interest. Phelps-Roper v. Nixon, 509 F.3d 480, 484 (8th Cir. 2007) (applying the Dataphase

factors to request for a preliminary injunction); Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d

109 (8th Cir. 1981) (en banc); Prudential Inc. Co. of Am. v. Inlay, 728 F. Supp. 2d 1022, 1028

(N.D. Iowa 2010) (noting applications for preliminary injunctions and temporary restraining

orders are measured against the same factors). No single factor is determinative, they must be

“balanced to determine whether they tilt towards or away” from granting the injunction. Noodles

Dev., LP. v. Ninth Street Partners, LLP, 507 F. Supp. 2d 1030, 1034 (E.D. Mo. 2007). An

injunction is an extraordinary remedy and the movant bears the burden of establishing the need

for such relief. Id.

Applying the Dataphase factors to the present case, the Court finds as follows. First,

Plaintiff has not established that he will suffer an immediate and irreparable injury if the Court

does not issue a temporary restraining order. Plaintiff reports the state court unlawful detainer

action “is set for trial in early October, 2013” thus there is no risk of an immediate injury here. It

is also unclear whether Plaintiff’s eviction is an irreparable harm. To demonstrate a sufficient

threat of irreparable harm the moving party must show that there is no adequate remedy at law,

that is, that an award of damages cannot compensate the movant for the harm. See Noodles Dev.,

507 F. Supp. 2d at 1036-37. Plaintiff has not cited any Eighth Circuit caselaw holding eviction is

an irreparable harm. It appears to the Court that any wrongful eviction could be cured later by an

Case 4:13-cv-00807-DGK Document 9 Filed 09/20/13 Page 2 of 4


order re-admitting Plaintiff to the property and awarding monetary damages to compensate him

for the expense of living elsewhere until he is re-admitted.

Second, the balance of harms factor tilts slightly in favor of granting the injunction.

Granting the injunction will allow Plaintiff to stay in his home and avoid having his life

substantially disrupted. However, it will also preclude Defendant from obtaining possession of

the property and earning income from it. Thus, the harm Plaintiff faces is only slightly more

substantial than the harm which Defendant faces. Peterson v. Spectra Fin., Inc., No. 06-3796

(PAM/JSM), 2007 WL 967334, at *3 (D. Minn. March 29, 2007).

Third, Plaintiff is unlikely to prevail on the merits. To demonstrate likelihood of success

on the merits, a movant need not show that he ultimately will succeed on its claims, only that the

prospect for success is sufficiently likely to support the kind of relief he requests. Noodles Dev.,

LP., 507 F. Supp. 2d at 1034 (emphasis added) (citations omitted). That is, the movant need

only show “a fair chance of prevailing.” Phelps-Roper, 509 F.3d at 485. Plaintiff argues he has

shown likelihood of success because the motion and Complaint are verified “and because Court

can deem as admitted that Defendant failed to honor the Deed of Trust securing Plaintiff’s

obligations to Defendant by ignoring and failing to satisfy” various HUD regulations. The Court

has reviewed the Complaint and the various HUD regulations and is not convinced Plaintiff has a

fair chance of prevailing.

Fourth and finally, the Court turns to the public policy factor. While public policy favors

preventing wrongful foreclosure and unlawful eviction, the Court is not convinced that is what is

happening here. On the other hand, public policy also favors enforcement of contractual

obligations and repayment of mortgages. Peterson, 2007 WL 967334, at *4. Thus this factor

weighs against granting the injunction.

Case 4:13-cv-00807-DGK Document 9 Filed 09/20/13 Page 3 of 4


After weighing the above factors, the Court holds Plaintiff has not carried his burden of

showing that the Court should grant the extraordinary relief sought. The motion is DENIED.


Date: September 20, 2013

/s/ Greg Kays

Case 4:13-cv-00807-DGK Document 9 Filed 09/20/13 Page 4 of 4