Akers v. Windward Capital Corporation et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
MARTHA A. AKERS,
Debtor.
____________________________
MARTHA A. AKERS,
Plaintiff,
v.
WINDWARD CAPITAL
CORPORATION, et al.,
Defendants.
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Case No. 07-00662
(Chapter 7)
Adversary Proceeding No.
10-10006
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER
DENYING AMENDED MOTION FOR PRELIMINARY INJUNCTION
The real property of the plaintiff Akers is scheduled for
foreclosure on June 30, 2010. 	Akers filed an unsigned motion for
preliminary injunction on May 26, 2010 (Dkt. No. 35) and filed a
signed version of that motion on June 2, 2010 (Dkt. No. 39). 	On
June 28, 2010, she filed a request (Dkt. No. 44) for an emergency
hearing on the request for injunctive relief. 	The motion for
preliminary injunction will be denied, and the request for a
The document below is hereby signed.
Signed: June 29, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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hearing will be denied.
As this court observed in denying an earlier motion for
preliminary injunction Akers had pursued, a motion for
preliminary injunction must be supported by affidavits as
required by District Court Local Civil Rule 65.1 which provides
in pertinent part:
(c) 	APPLICATIONS FOR PRELIMINARY INJUNCTIONS.
An application for a preliminary injunction shall
be made in a document separate from the complaint. 	The
application shall be supported by all affidavits on
which the plaintiff intends to rely. 	The opposition
shall be served and filed within seven days after
service of the application for preliminary injunction,
and shall be accompanied by all affidavits on which the
defendant intends to rely. 	Supplemental affidavits
either to the application or the opposition may be
filed only with permission of the court.
(d) 	HEARINGS ON APPLICATIONS FOR PRELIMINARY
INJUNCTION.
On request of the moving party together with a
statement of the facts which make expedition essential,
a hearing on an application for preliminary injunction
shall be set by the court no later than 21 days after
its filing, unless the court earlier decides the motion
on the papers or makes a finding that a later hearing
date will not prejudice the parties. 	The practice in
this jurisdiction is to decide preliminary injunction
motions without live testimony where possible.
Accordingly, any party who wishes to offer live
testimony or cross-examine an affiant at the hearing
shall so request in writing 72 hours before the hearing
and shall provide the court and all other parties a
list of the witnesses to be examined and an estimate of
the time required. 	The court may decline to hear
witnesses at the hearing where the need for live
testimony is outweighed by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence. 	If practicable, the court shall
notify all parties of its ruling on the request to
adduce live testimony one business day before the
hearing.
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Those provisions are made applicable by LBR 7065-1 (referring to
an earlier version of the District Court Local Rule prior to its
re-numbering). 1 	Without affidavits submitted in support of a
motion for preliminary injunction, the court is unable to proceed
in an orderly fashion to address such a motion for preliminary
injunction.
In any event, the motion for preliminary injunction sets
forth no basis for concluding that Akers has a likelihood of
succeeding on the merits. 	The motion only sets forth
insufficient conclusory assertions of wrong unsupported by any
specific recitation of facts establishing a wrong. 	Windward
Capital Corporation’s opposition to the motion, in contrast,
includes an affidavit laying out facts demonstrating Windward’s
entitlement to proceed with foreclosure. 	Because Akers has shown
no likelihood of success on the merits, the motion must be
denied.
Although Akers will be harmed by the loss of real estate
that is unique, and that is a property into the operation of
which Akers has poured her heart and soul, that does not suffice
to warrant injunctive relief. 	A preliminary injunction is an
extraordinary remedy, and a party is not entitled to obtain a
preliminary injunction unless there is a clear 	showing of
1 	The seven-day response time, however, has been altered to
14 days in this adversary proceeding.
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entitlement to such relief, including a clear showing of a
likelihood of success on the merits. 	Winter v. National
Resources Defense Council, 129 S. Ct. 365, 376 (2008); Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997). 	Here, Akers has not made
even a minimal showing of a likelihood of success on the merits,
and any irreparable harm to her is insufficient to warrant entry
of a preliminary injunction.
It is thus
ORDERED that the plaintiff’s motion for preliminary
injunction (Dkt. No. 35 as amended by Dkt. No. 39) is DENIED, and
the request (Dkt. No. 44) for an emergency hearing is DENIED.
[Signed and dated above.]
Copies to: All counsel of record.
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