192 F. Supp. 3d 251
D. Mass.2016Background
- Plaintiff Jeanne M. Kilmowicz filed suit against Deutsche Bank (as Indenture Trustee) and Carrington alleging wrongful foreclosure, Chapter 93A violation, breach of covenant of good faith and negligent infliction of emotional distress.
- Plaintiff sought vacation of a Massachusetts Land Court Final Judgment of Foreclosure under Mass. R. Civ. P. 60(b), an injunction against further post-foreclosure actions (including eviction), and damages.
- Plaintiff alleged the mortgage assignment to Deutsche Bank was fraudulent because it was assigned from an entity that no longer existed to a trust that had closed to new mortgages.
- Plaintiff moved for a temporary restraining order (TRO) without notice to halt eviction/execution for possession and other post-foreclosure actions.
- The Court scheduled a TRO hearing, directed Plaintiff to give notice to defendants, and ultimately held a hearing without defendants; the Court denied the TRO for failure to show likelihood of success on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal court should vacate a state-court foreclosure judgment under state rule | Kilmowicz: judgment obtained by fraud; seeks relief under Mass. R. Civ. P. 60(b) | Defendants: relief is extraordinary; legal challenges were or could have been raised in state court | Denied — plaintiff failed to show likelihood of success on the merits |
| Whether court may enjoin state court (Housing Court) execution for possession | Kilmowicz: seeks injunction to prevent eviction and other post-foreclosure actions | Defendants: federal court lacks authority to grant the state-court-directed relief against non-parties; challenges are insufficient | Denied — no authority shown for extraordinary request |
| Validity of mortgage assignment to Deutsche Bank | Kilmowicz: assignment was improper/fraudulent (assignor defunct; trust closed) | Defendants: similar challenges routinely rejected; allegations (e.g., robo-signing) do not invalidate assignment under relevant law | Denied — court noted precedent rejecting such challenges and found plaintiff unlikely to succeed |
| Whether plaintiff demonstrated entitlement to TRO factors (likelihood of success, irreparable harm, equities, public interest) | Kilmowicz: argued immediate irreparable harm from eviction and requested immediate relief | Defendants: disputed showing of likelihood of success and proper basis for ex parte TRO | Denied — failure on likelihood of success dispositive; TRO denied |
Key Cases Cited
- Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26 (1st Cir. 2011) (four-factor standard for TRO/preliminary injunction)
- Philip Morris, Inc. v. Harshbarger, 159 F.3d 670 (1st Cir. 1998) (likelihood of success is the touchstone of preliminary-injunction inquiry)
- Maine Educ. Ass'n Benefits Tr. v. Cioppa, 695 F.3d 145 (1st Cir. 2012) (failure to show likelihood of success renders other factors immaterial)
- New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1 (1st Cir. 2002) (standard on preliminary injunction factors)
- Nieves-Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003) (burden of proof on movant for injunction factors)
- Butler v. Deutsche Bank Tr. Co. Americas, 748 F.3d 28 (1st Cir. 2014) (challenges like robo-signing generally do not undermine mortgage assignment validity)