Heussner et al v. Federal Home Loan Mortgage Corporation

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Frank Morley Heussner, Jr. and
Karen Heussner,
Plaintiffs,
v.
Federal Home Loan Mortgage
Corporation et al.,
Defendants.
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Civil Action H-26-0585
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 5. Pending before
the court are Plaintiffs’ Amended Applications for Temporary
Restraining Order and Temporary Injunction, ECF Nos. 10 and 11,
and Plaintiffs’ Emergency Motion to Stay State Court Proceedings,
ECF No. 19. The court recommends that Plaintiffs’ motions, ECF
Nos. 10, 11, and 19, be DENIED.
1. Background
Plaintiffs Frank and Karen Heussner filed suit in state court
in January 2026. Plaintiffs allege that, in 2007, they obtained a
mortgage loan for property located at 7827 Wolfield Lane,
Houston, Texas 77071 (the Property). ECF No. 1-4 at 3. Plaintiffs
allege that Defendant Select Portfolio Servicing, Inc. (SPS)
conducted a nonjudicial foreclosure sale of the Property on
August 5, 2025, and Defendant Phillip Julian purchased the
property at that time. Id. at 3–4. On August 21, 2025, Plaintiffs
attempted to pay SPS $34,122.83 to reinstate the mortgage loan,
but SPS rejected the reinstatement payment. Id. Now, Julian
seeks to evict Plaintiffs from the Property. Id. Plaintiffs allege
claims for wrongful foreclosure, breach of contract, fraud, and
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violations of the Fair Debt Collection Practices Act, Texas Debt
Collection Act, and Texas Deceptive Trade Practices Act. Id. at 5–
7. Defendants removed the case to federal court on January 26,
2026. ECF No. 1.
On February 9, 2026, a state court ruled in favor of the
Heussners in an eviction suit by Julian on procedural grounds.
ECF No. 18-2 at 1. Later that day, Julian served Plaintiffs with a
new Notice to Vacate the Property by February 12, 2026. ECF No.
10 at 3. Plaintiffs filed their amended motions for a TRO in this
court on February 12.
Plaintiffs state in a supplement that another eviction
proceeding began thereafter in state court and resulted in a
“judgment for possession,” apparently in favor of Julian, which was
entered on March 3. ECF No. 18.
On April 10, Plaintiffs filed an Emergency Motion to Stay
State Court Proceedings. ECF No. 19. Plaintiffs attached a state
court order setting a trial for April 13. ECF No. 19-3. Plaintiffs
seek temporary restraining orders (TRO) and preliminary
injunctions to enjoin Julian from evicting Plaintiffs from the
Property and to stay ongoing state court proceedings. ECF No. 10
at 6;1 ECF No. 19 at 1.
2. Legal Standard and Analysis
A TRO is an extraordinary remedy that should only be
awarded upon a clear showing that the plaintiff is entitled to such
relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
To obtain a TRO or preliminary injunction, the movant must
clearly show: (1) a substantial likelihood of success on the merits;
(2) a substantial threat of irreparable harm if the injunction is not
granted; (3) that the threatened injury outweighs any harm that
1 Plaintiffs’ Amended Motions, ECF Nos. 10 and 11, were filed on the same day and
appear to be identical.
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may result from the injunction to the non-movant; and (4) that the
injunction will not undermine the public interest. Voting for Am.,
Inc. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013); Black v. NewRez
LLC, No. 24-CV-0028, 2024 WL 1775343, at *1 (S.D. Tex. Apr. 2,
2024), R. & R. adopted (S.D. Tex. Apr. 24, 2024). The party moving
for a TRO must carry the burden as to all four elements before a
TRO may be issued. Voting for Am., Inc., 732 F.3d at 386; Kalkan
v. Fed. Nat’l Mortgage Ass’n (Fannie Mae), No. 24-CV-2548, 2025
WL 3251620, at *1 (S.D. Tex. Nov. 21, 2025). To satisfy the first
element of likelihood of success on the merits, a movant is not
required to prove their entire case. See Janvey v. Alguire, 647
F.3d 585, 595–96 (5th Cir. 2011). Rather, the court looks to
standards provided by the substantive law. Id. As to the second
element, a plaintiff must show that there is no adequate remedy
at law before either a TRO or preliminary injunction may be
issued. See id. at 600. “The possibility that adequate compensatory
or other corrective relief will be available at a later date, in the
ordinary course of litigation, weighs heavily against a claim of
irreparable harm.” N. Miss. Med. Ctr., Inc. v. Quartiz Techs., No.
23-60483, 2025 WL 980568, at *7 (5th Cir. Apr. 1, 2025).
Plaintiffs are not entitled to a TRO or preliminary
injunction. Plaintiffs have not shown that they are likely to
succeed on the merits. The property was foreclosed several months
before this suit was filed. Julian now appears to be in legal
possession of the property. It is not clear that Plaintiffs have
asserted any cause of action at all against Julian. It is also not
clear that Plaintiffs have shown that success on the merits of any
cause of action against the other defendants would entitle them to
dispossess Julian of the property. Thus, there is no clear legal basis
on which the court could stop the eviction.
Plaintiffs also have not shown that there is a substantial
threat of irreparable harm if the injunction is not issued. Plaintiffs
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can obtain money damages if they succeed on the merits.
Moreover, as mentioned, the foreclosure took place well before this
case was filed in state court. Julian has been in legal possession of
the property for approximately eight months. What Plaintiffs now
seek is to stop Julian’s attempt to evict them. Stopping the eviction
will not remedy the alleged wrongful foreclosure, which Julian
took no part in. Moreover, Julian has not even been served with
this lawsuit, or the motion for TRO. Plaintiffs have not clearly
established the required elements for obtaining injunctive relief.
There are procedural problems as well. Under Federal Rule
of Civil Procedure 65(a)(1), “[t]he court may issue a preliminary
injunction only on notice to the adverse party.” It does not appear
that Plaintiffs served any motion on Julian, and there is no
evidence showing that Julian has been properly served in this case.
See ECF No. 1-3 at 2–3 (showing, on the state court docket, that
Julian was not served prior to removal); ECF No. 10 at 7 (stating
that the motion was served only to counsel via PACER). The docket
sheet states that notice was not electronically mailed to Julian,
and there is no physical address shown on the docket sheet for
Julian. See ECF Nos. 10, 11, 19.
To the extent that Plaintiffs seek a TRO, the court may issue
such an order without notice only if “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.” Fed. R. Civ.
P. 65(b)(1)(A). For the reasons stated above and because Plaintiffs
have failed to comply with Rule 65, issuance of a TRO and issuance
of a preliminary injunction, ECF Nos. 10, 11, and 19, should be
denied.
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3. Conclusion
The court recommends that Plaintiffs’ Amended
Applications for a TRO and Temporary Injunction, ECF Nos. 10
and 11, be DENIED, and that Plaintiffs’ Emergency Motion to
Stay State Court Proceedings, ECF No. 19, be DENIED.
The parties have fourteen days from service of this
Memorandum and Recommendation to file written objections. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Failure to timely file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on April 13, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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