United States District Court, S.D. West Virginia, Huntington Division
TEMPORARY RESTRAINING ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
Thursday, December 6, 2018, Plaintiffs Bernard and Judy Webb
filed a Verified Complaint for Declaratory and Injunctive
Relief against Defendants Sarah C. Ellis, Tyler Carpenter,
and Steptoe & Johnson PLLC, who Plaintiffs claim are
“fiduciary trustees appointed and acting pursuant to
the terms of a Deed of Trust signed on September 13,
2016.” Compl. at ¶8, ECF No. 1, at 2. The
Court issued electronic summons for the Complaint on December
7, 2018. With the Verified Complaint, Plaintiffs filed a
Motion for a Temporary Restraining Order and Preliminary
Injunction. ECF No. 4. Although the summons have not been
returned as executed, Plaintiffs' counsel filed a
Certificate of Service with the motion, certifying that
copies of the Verified Complaint and motion were delivered to
Defendants' office on the day it was filed.
to Rule 65(b) of the Rules of Civil Procedure, a temporary
restraining order may be issued “without written or
oral notice to the adverse party . . . only if . . . specific
facts in an affidavit or 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). The Rule also
requires “the movant's attorney [to] certif[y] in
writing any efforts made to give notice and the reasons why
it should not be required.” Fed.R.Civ.P. 65(b)(1)(B).
To obtain a temporary restraining order or preliminary
injunction, the movants also must establish: (1) that they
are “likely to succeed on the merits[;]” (2) that
they are “likely to suffer irreparable harm in the
absence of preliminary relief[;]” (3) “that the
balance of equities tips in [their] favor[;]” and (4)
that a temporary restraining order “is in the public
interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (citations omitted).
“[A]ll four requirements must be satisfied. Real
Truth About Obama, Inc., v. Fed. Election Comm'n,
575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds,
559 U.S. 1089 (2010), reinstated in relevant part on remand,
607 F.3d 355 (4th Cir. 2010) (citation omitted). If a
temporary restraining order is granted, it “should be
restricted to serving their underlying purpose of preserving
the status quo and preventing irreparable harm just so long
as is necessary to hold a hearing, and no longer.”
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto
Truck Drivers Local No. 70 of Alameda Cty., 415 U.S.
423, 439 (1974) (footnote omitted).
the Court finds that Plaintiffs' counsel has certified
that a copy of the Verified Complaint and the motion were
delivered to Defendants. While it is difficult to determine
the likelihood of success at this stage in the proceedings,
the Court finds that Plaintiffs have met their burden in the
Verified Complaint. Specifically, Plaintiffs allege that
Defendants gave notice that they intend to sell
Plaintiffs' house on December 12, 2018, under and
pursuant to a September 13, 2016 Deed of Trust. However,
Plaintiffs claim that the Deed of Trust was rescinded and
legally void. As such, Plaintiffs' allegations raise a
substantial question as to the legal validity of the Deed of
Trust and the power and authority of Defendants, as fiduciary
trustees, to conduct the sale. The Court further finds that
if the sale proceeds, Plaintiffs will face irreparable harm
through the loss of their house. Additionally, the Court
finds that, as these Defendants are alleged to be acting as
fiduciary trustees and have no individual interest in the
sale of the house, the balance of equities and maintaining
the status quo favors granting a temporary injunction.
Finally, the Court find that, as Plaintiffs have raised a
substantial issue as to the enforcement of the Truth and
Lending Act, 15 U.S.C. § 1635(a), the public interest is
promoted by granting a temporary injunction to give the Court
the opportunity to entertain arguments by the parties before
the house is publicly sold.
upon review, the Court GRANTS
Plaintiffs' motion for a temporary restraining order to
maintain the status quo pending a hearing for a preliminary
injunction. The Court hereby ENJOINS
Defendants, any successors, officers, agents, servants,
employees, and attorneys of the Defendants, and all others
acting with or in active concert or participation with any
Defendant or such person or entity, not to schedule or
conduct any trustee sale until further Order of the Court.
Court further SCHEDULES a preliminary
injunction hearing for Tuesday, December 18, 2018 at
10:30 a.m. At such time, the Court will determine
whether the temporary restraining order shall be dissolved or
whether a preliminary injunction shall issue. Defendants
shall have until Thursday, December 13, 2018, at
12:00 p.m. to file a Response to Plaintiffs'
motion. Plaintiffs shall have until Friday, December
14, 2018, at 12:00 p.m. to file a Reply. The Court
DIRECTS Plaintiffs' counsel to
immediately notify Defendants of this Order and the hearing
through appropriate means and file corresponding certificates
of service with the Court. Pursuant to Rule 65(b), this
temporary restraining order shall expire at the conclusion of
the preliminary injunction hearing unless otherwise extended
by Order of this Court.
respect to a bond, Rule 65(c) states: “The court may
issue a preliminary injunction or a temporary restraining
order only if the movant gives security in an amount that the
court considers proper to pay the costs and damages sustained
by any party found to have been wrongfully enjoined or
restrained.” Fed.R.Civ.P. 65(c), in part. In
determining whether the court should require a security, it
must look to the potential harm to the enjoined party.
See Hoechst Diafoil Co. v. Nan Ya Plastics Corp.,
174 F.3d 411, 424 n.3 (4th Cir. 1999). “[I]f there is
an absence of proof showing a likelihood of harm, certainly
no bond is necessary.” Continental Oil Co. v.
Frontier Refining Co., 338 F.2d 780, 782 (10th Cir.
1964) (footnote omitted); see Hoechst, 174 F.3d at
424 n.3 (4th Cir. 1999). “In fixing the amount of an
injunction bond, the district court should be guided by the
purpose underlying Rule 65(c), which is to provide a
mechanism for reimbursing an enjoined party for harm it
suffers as a result of an improvidently issued injunction or
restraining order.” Hoeschst, 174 F.3d at 424
n. 3 S.D. W.Va. July 26, 2017). In this case, the Court finds
that a bond is unnecessary. Defendants are fiduciary trustees
who will face little harm by cancelling the current sale.
Additionally, Plaintiffs appear to have limited assets which
are under the control of a Chapter 13 trustee in bankruptcy
court. Therefore, the Court WAIVES the
posting of a bond by Plaintiffs.
Order shall take effect on this day at 4:00 p.m.
Court DIRECTS the Clerk to send a copy of
this Order to counsel of record and ...