Mottram et al v. Wells Fargo Bank, NA

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Stacey Mottram and Darrin Mottram
v. Civil No. 16-cv-546-PB
Wells Fargo Bank, N.A.
REPORT AND RECOMMENDATION
Before the court is the pro se plaintiffs’ request for a
preliminary injunction, asserted in their complaint (Doc. No.
1). The request has been referred to the undersigned magistrate
judge for a report and recommendation. See Jan. 5, 2017 Order
(Doc. No. 2). Plaintiffs requested a preliminary injunction
enjoining defendant Wells Fargo from taking any further action
to foreclose on their mortgage, and from holding a foreclosure
sale and auctioning their home, until Wells Fargo has completed
the loan modification process to modify the home loan at issue.
Discussion
I. Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (citation omitted). The likelihood
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of success and irreparable harm are the factors that weigh most
heavily in the analysis. See Esso Std. Oil Co. v. Monroig–
Zayas, 445 F.3d 13, 18 (1st Cir. 2006); see also Voice of the
Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32
(1st Cir. 2011) (“‘[p]erhaps the single most important
prerequisite for the issuance of a preliminary injunction is a
demonstration that if it is not granted the applicant is likely
to suffer irreparable harm before a decision on the merits can
be rendered’” (citation omitted)). The burden of proof is on
the movant. See Esso Std. Oil Co., 445 F.3d at 18.
The court may rule on a motion for a preliminary injunction
on the papers if it has before it “‘adequate documentary
evidence upon which to base an informed, albeit preliminary
conclusion,’” and the parties have been afforded “‘a fair
opportunity to present relevant facts and arguments to the
court, and to counter the opponent’s submissions.’” Campbell
Soup Co. v. Giles, 47 F.3d 467, 470-71 (1st Cir. 1995)
(citations omitted). The parties have had such an opportunity
to date, and an additional opportunity is provided by the
objection period as to this Report and Recommendation.
II. Irreparable Harm
“Irreparable harm most often exists where a party has no
adequate remedy at law.” Charlesbank Equity Fund II, Ltd.
P’ship v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004).
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“A finding of irreparable harm must be grounded on something
more than conjecture, surmise, or a party’s unsubstantiated
fears of what the future may have in store.” Id.
The mortgage and note at issue were signed by Darrin
Mottram only. See Note (Doc. No. 8-2, at 3); Mortgage (Doc. No.
8-3, at 9). Plaintiff Stacey Mottram is not a signatory to
either of those instruments. Darrin Mottram has filed for
bankruptcy under Chapter 13, and that case is currently pending
as In re Mottram, No. 17-10207-BAH (Bankr. D.N.H.) (“Bankruptcy
Petition”). See generally Doc. No. 11.
Defendant Wells Fargo has filed a status report in this
case (Doc. No. 12), stating that the February 24, 2017
foreclosure auction was cancelled in light of the automatic
stay. Defendant further reported that it has no information to
report to this court regarding the likelihood of an auction
occurring while the bankruptcy proceeding is pending.
This court’s review of PACER indicates that the Bankruptcy
Petition remains pending at this time, and that the bankruptcy
trustee has moved to dismiss that petition and to bar Darrin
Mottram from refiling any Chapter 13 petition for up to two
years. See Mot. to Dismiss & Proscribe Further Filings,
Bankruptcy Petition (Bankr. D.N.H., filed Feb. 24, 2017) (ECF
No. 11). The trustee’s motion includes a notice of a hearing on
the motion to dismiss, scheduled for April 14, 2017.
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Under such circumstances, in light of the automatic stay,
plaintiffs cannot show at this time that irreparable harm is
likely to occur prior to the resolution of the bankruptcy
petition. Accordingly, the district judge should deny
plaintiffs’ request for a preliminary injunction, without
prejudice to plaintiffs’ ability to file a motion for a
preliminary injunction in this case after the bankruptcy
proceeding ends, or at such other time as plaintiffs become
aware of any present risk of irreparable harm to their
interests, in the absence of an injunction.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen day period may be extended
upon motion. Failure to file objections within the specified
time waives the right to appeal the district court’s order. See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
___________________________
Andrea K. Johnstone
United States Magistrate Judge
March 10, 2017
cc: Stacey Mottram, pro se
Darrin Mottram, pro se
J. Patrick Kennedy, Esq.
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