Evans v. Colorado Housing and Finance Authority et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:24-cv-01033-CNS-SBP
RACHEL EVANS,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Defendant.
ORDER
This matter comes before the Court on five motions filed by Plaintiff for injunctive
relief: Plaintiff’s Motion for Emergency Hearing, Preservation of Evidence for Temporary
Restraining Order, ECF No. 12; Plaintiff’s Motion for Emergency Hearing to Stay
Eviction and Preserve Evidence, ECF No. 13; Plaintiff’s Motion for an Expedited
Emergency Hearing and Temporary Restraining Order Preliminary Hearing, ECF No.
23; Plaintiff’s Motion for Preliminary Injunction and Restraining Order, ECF No. 25; and
Plaintiff’s Motion to have Injunctive Hearing, ECF No. 26. For the reasons explained
below, the motions are DENIED.
I. SUMMARY FOR PRO SE PLAINTIFF
You have filed five motions for a temporary restraining order (TRO) and for a
preliminary injunction seeking multiple forms of relief, primarily to stay your eviction on
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June 7 and to stop the sale of the property. In order for the Court to grant your motions,
the law requires that you satisfy four factors; one of those factors is showing a likelihood
of success on the merits. After considering the arguments raised in your motions, the
Court denies your motions for injunctive relief, primarily because you did not show the
required four factors. The Court will explain why it is denying the motions below, including
a discussion of the legal authority that supports this conclusion.
II. BACKGROUND
Plaintiff originally filed this case on March 11, 2024, in District Court in Mesa
County, Colorado, as Case No. 2024CV21. ECF No. 3 at 1. In the state court complaint,
Plaintiff named the Colorado Housing and Finance Authority, Dovenmuehle Mortgage,
Inc., Janeway Law Firm, and the United States Department of Housing and Urban
Development (HUD) as Defendants. Plaintiff alleges that Defendants violated a variety
of statutes, regulations, and protocols relating to housing regulation, alleging that the
mortgage servicers’ implementation of COVID-19 mortgage relief programs was
fraudulent and caused Plaintiff to lose her home to foreclosure. Id. at 1; ECF No. 11 at
1.
On April 17, 2024, HUD removed the action to federal court pursuant to 28
U.S.C. § 1442(a), which authorizes the removal of any civil action commenced in state
court against an agency of the United States. ECF No. 1 at 2. On May 10, 2024, Plaintiff
filed an amended complaint in this Court, listing only HUD as a Defendant. ECF No. 7.
Because the other Defendants were not included in the amended complaint, they were
terminated. ECF No. 14. Plaintiff then filed the five motions for injunctive relief at issue
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here: the first two were filed on June 6, the third on June 11, the fourth on June 12, and
the fifth on June 18. ECF Nos. 12, 13, 23, 25, 26. Plaintiff was evicted from the property
on June 7.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 65 authorizes a district court to enter preliminary
injunctions and issue TROs. Fed. R. Civ. P. 65(a), (b). The decision whether to issue a
TRO is committed to a district court’s sound discretion. Allen W. Hinkel Dry Goods Co. v.
Wichison Indus. Gas Co., 64 F.2d 881, 884 (10th Cir. 1933); see also 11A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2951 (3d ed. 2023) (“The
issuance of a temporary restraining order is a matter that lies within the discretion of the
district court.”). The procedure and standards for determining whether to issue a TRO
mirror those for a preliminary injunction. See Emmis Commc’ns Corp. v. Media Strategies,
Inc., No. CIV. A. 00-WY-2507CB, 2001 WL 111229, at *2 (D. Colo. Jan. 23, 2001) (citation
omitted). “Preliminary injunctions are extraordinary remedies requiring that the movant’s
right to relief be clear and unequivocal.” Planned Parenthood of Kan. v. Andersen, 882
F.3d 1205, 1223 (10th Cir. 2018).
To merit a temporary restraining order, Plaintiff must establish that (1) she has a
likelihood of success on the merits; (2) she will suffer irreparable injury if the injunction is
denied; (3) her threatened injury outweighs injury to the opposing party; and (4) the
injunction would not be adverse to the public interest. See, e.g., Wiechmann v. Ritter, 44
F. App’x 346, 347 (10th Cir. 2002). A plaintiff seeking a TRO must satisfy all four
elements; a “plaintiff’s failure to prove any one of the four preliminary injunction factors
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renders its request for injunctive relief unwarranted.” Vill. of Logan v. U.S. Dep’t of Interior,
577 F. App’x 760, 766 (10th Cir. 2014); Denver Homeless Out Loud v. Denver, Colorado,
32 F.4th 1259, 1277 (10th Cir. 2022).
In addition to the four factors, a district court must also consider whether the
movant’s request falls within one of the “disfavored injunction” categories. The categories
of disfavored injunctions include those that will (1) alter the status quo, (2) mandate an
affirmative act by the defendant, or (3) afford all the relief that the movant could expect to
win at trial. Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2004). A request for
disfavored injunctive relief “must be more closely scrutinized to assure that the exigencies
of the case support the granting of a remedy that is extraordinary even in the normal
course.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975
(10th Cir. 2004). Where a movant requests a disfavored injunction, the movant “must
make a strong showing both on the likelihood of success on the merits and on the balance
of the harms.” Colo. v. E.P.A., 989 F.3d 874, 884 (10th Cir. 2021) (quotation omitted).
For the first factor, a plaintiff generally need only “establish a reasonable probability
of success, not an overwhelming likelihood of success.’” Atchison, T. & S. F. Ry. Co. v.
Lennen, 640 F.2d 255, 261 (10th Cir. 1981) (citation and quotations omitted). As to the
second factor, irreparable harm means that the claimed injury “must be both certain and
great”; it is not enough to be “merely serious or substantial.” Prairie Band of Potawatomi
Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001).
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IV. ANALYSIS
Here, Plaintiff seeks injunctive relief for multiple purposes throughout the five
motions. For each of these requests, Plaintiff has not met her burden of showing that
injunctive relief is warranted, and so injunctive relief is denied.
First, Plaintiff seeks a TRO to stay her eviction. ECF No. 13. The motion for a TRO
was filed on June 6, 2024, and entered on June 7. The eviction occurred on June 7, 2024.
Because the date of eviction has passed and she has already been evicted, a TRO on
this matter is moot and so is denied. Plaintiff’s second motion, ECF No. 23, requests a
preliminary injunction and TRO “to protect my interest in the property.” ECF No. 23 at 3.
It is unclear what Plaintiff is requesting; it appears to be a reiteration of the request to stay
the eviction proceedings. However, such a request is moot because the eviction has
already happened.
In the fourth motion, ECF No. 25, Plaintiff requests a preliminary injunction “to
Protect the Plaintiff’s Interest of Real Property. Stopping the Defendants from selling the
property until the court’s final decision.” ECF No. 25 at 1. Similarly, in the fifth motion
Plaintiff requests a hearing to “stop the Defendants from Selling the Plaintiff’s Property
and Returning Possession to the Plaintiff.” ECF No. 26 at 2. However, Plaintiff has not
met her burden of showing a likelihood of success on the merits. She contends, generally,
that HUD has failed to comply with its duty to protect Plaintiff, without more information
than what was in the complaint. See ECF No. 12 at 10. There is no information on how
HUD has a duty to protect Plaintiff, how HUD’s actions failed to protect Plaintiff, or how
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that alleged failure relates to her legal claims. This is not enough to meet her burden of
demonstrating a likelihood of success on the merits.
Additionally, Plaintiff’s complaint only appears to lay out one claim against HUD:
that HUD violated the Administrative Procedure Act (APA) by failing to establish clear
rules and requirements for mortgage lenders and services regarding COVID mortgage
modification programs. However, Plaintiff has not stated how HUD has failed to establish
clear rules and requirements, nor how that alleged behavior would violate the APA.
Additionally, HUD is not the entity overseeing the sale of Plaintiff’s property, so prohibiting
HUD from selling Plaintiff’s property would not stop the sale from occurring. Also, in her
fifth motion, Plaintiff requests that the property be returned to her; because this is
requesting an affirmative action by Defendant, it constitutes a disfavored injunction and
so the standard is even higher. Because nothing in the records indicates that HUD has
violated the APA or any other law, Plaintiff has not established a reasonable probability
of success on the merits, let alone the higher standard of a “significant showing.” The
Court does not need to analyze the remaining three factors, because Plaintiff has the
burden of showing that all four factors are in her favor. Accordingly, this request for a
preliminary injunction is denied.
Plaintiff also requests a variety of remedies, all of which are denied. These
requests go to the merits of her case and are premature, as Plaintiff has not prevailed on
any claims and so cannot request these remedies through injunctive relief. These
remedies may also be outside the purview of this Court. Plaintiff requests the appointment
of 	an 	independent 	third-party 	examiner 	to 	conduct 	“a 	comprehensive 	nationwide
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investigation”; creation of a $50 million restitution fund; initiation of a congressional
inquiry; transfer of enforcement authority to the U.S. Department of Justice; and
establishment of a Fair Lending Testing Program, a public audit report, a borrower
complaint hotline, and a historical complaint review. ECF No. 12 at 8–21. Plaintiff also
requests that the Property be deeded to Plaintiff, that the Court investigate whether any
judicial rulings facilitated the foreclosure practices at issue, and that the Court remind
Mesa County Sheriff’s Office of the duty to protect citizens’ legal rights and to take all
claims of fraud seriously. Id. These are all remedies that are not appropriately granted at
this stage in the proceedings for many reasons, not the least of which is that Plaintiff has
not proven her claims nor a likelihood of success on the merits, as described above.
These requests are denied.
Finally, Plaintiff seeks a TRO to prohibit Defendants from destroying, altering, or
allowing the destruction of evidence. ECF No. 12 at 2. Plaintiff claims that Defendants
have already altered key evidence, including by allowing the Loan Solutions Center online
portal to be disabled to prevent Plaintiff from accessing evidence of her modification
requests. ECF No. 12 at 5–7. The Court will not consider, for purposes of this Order,
whether these allegations are true. Destruction of evidence or the failure to preserve
electronically stored information is a violation of Federal Rule of Civil Procedure 37(e). To
the extent Plaintiff believes that that has happened, the appropriate relief is a motion
pursuant to that rule.
Accordingly, the Court DENIES Plaintiff’s motions for a temporary restraining order
and other injunctive relief, ECF Nos. 12, 13, 23, 25, 26. The Court recommends that
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Plaintiff consult the information available to plaintiffs representing themselves, including
information on requesting appointment of counsel, which can be found on the court’s
website, www.cod.uscourts.gov/RepresentingYourself.aspx.
DATED this 20 th day of June 2024.
BY THE COURT:
______________________________
Charlotte N. Sweeney
United States District Judge
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