Wheeler v. Carrington Mortgage Services LLC

Background

Johanna R. Wheeler, who was representing herself, sued Carrington Mortgage Services LLC concerning an alleged illegal foreclosure of the property where she resides. Wheeler filed an emergency motion for a temporary restraining order (TRO), asking the court to prevent Carrington from conveying title to the property or evicting her or her family.

Temporary restraining order

The court denied the TRO motion. It first found no evidence that Wheeler had given Carrington oral or written notice of the motion. Although a court may issue a TRO without notice in limited circumstances, the court found that Wheeler had not certified in writing her efforts to provide notice or why notice should not be required. The court also found that she had not provided specific facts clearly showing that immediate or irreparable injury would occur before Carrington could respond.

For preliminary injunctive relief, the court explained that a plaintiff generally must show a likelihood of success on the merits, likely irreparable harm without relief, that the balance of equities favors an injunction, and that an injunction would serve the public interest. The court stated that Wheeler had not provided enough information to analyze the other three factors. For example, she referred to an informal request for reconsideration of a decision in related foreclosure hearings but did not identify the court, the decision, or the status of that request. She also referred to a writ of possession allegedly obtained after a hearing for which she was not notified or present, but did not explain why this federal case challenged a decision by another unidentified court. The court concluded that it lacked sufficient information to issue a TRO.

Request to proceed without paying filing fees

The court also denied Wheeler’s motion for leave to proceed without paying filing fees. Based on Wheeler and her husband’s combined net income of $4,800 per month, considered together with their expenses, the court was not persuaded that she could not pay the required fees.

The court ordered payment of the $400 filing fee by January 13, 2020. It stated that failure to pay by that date would result in dismissal of the action without prejudice. The court also advised Wheeler that she was responsible for serving the complaint and other required materials under the Federal Rules of Civil Procedure and for keeping the court informed of her current address.

Disposition

Judge Yvonne Gonzalez Rogers denied the motion for a temporary restraining order and denied the application to proceed without paying filing fees. The opinion did not dismiss the case at that time; it stated that failure to pay the filing fee by the deadline would result in dismissal without prejudice.