Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elliott v. Mac

United States District Court, D. South Dakota, Western Division

September 23, 2019

RAYMOND D. ELLIOTT, a/k/a Raymond Elliott, Plaintiff,
v.
FREDDIE MAC; FANNIE MAE; GMAC; RESIDENTIAL FUNDING COMPANY; RESIDENTIAL CREDIT SOLUTIONS; HOMECOMINGS FINANCIAL LLC; and MORTGAGE ELEC. REG. SYS., Defendants.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         On December 3, 2018, plaintiff Raymond Elliott, appearing pro se, filed a complaint pursuant to the Truth in Lending Act, 15 U.S.C. § 1601 et seq., against the defendants. (Docket 1). Mr. Elliott also filed a motion for preliminary injunction, together with a supporting affidavit and brief. (Dockets 2-4). Mr. Elliott did not pay the filing fee until July 25, 2019. Payment of the filing fee is a prerequisite to the commencement of a civil lawsuit.

         On August 1, 2019, Mr. Elliott filed a motion for an emergency stay of the sale of a residence and a motion for a court date for a hearing. (Dockets 8 & 9). Mr. Elliott submitted the appropriate documents so that summonses could be issued by the Clerk of Court. (Docket 10).

         On August 19, 2019, defendant Federal National Mortgage Association, “Fannie Mae, ” filed a motion to dismiss plaintiff’s complaint pursuant to Fed.R.Civ.P. 12(b)(6), together with supporting exhibits. (Docket 11 and 11-1 through 11-10). Pursuant to D.S.D. Civ. LR 7.1(B) plaintiff’s response to defendant’s motion to dismiss was not due until September 12, 2019.[1]

         On August 26, 2019, Mr. Elliott filed a request for an emergency injunction, together with attached exhibits and an affidavit. (Dockets 14, 14-1 & 15). In the request, Mr. Elliott moves to add the name of another individual as a defendant. (Docket 14 at p. 1). Considering Mr. Elliott’s pro se status, the court will treat plaintiff’s request as a motion for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a). A preliminary injunction may only be issued after notice to the adverse party. Fed.R.Civ.P. 65(a)(1).

         On August 27, 2019, Defendant Fannie Mae filed a memorandum in opposition to plaintiff’s motion for injunctive relief. (Docket 16). The defendant asserts Mr. Elliott cannot meet the factors for injunctive relief required by utilizing Dataphase.[2] Id. at pp. 7-9.

         On August 30, 2019, Mr. Elliott filed a reply memorandum in opposition to defendant’s brief and in support of his request for injunctive relief. (Docket 18). In his reply, Mr. Elliott relies solely on his rescission claim asserted in Elliott v. Ocwen Loan Servicing, LLC, 15-5038 (D.S.D. 2015). Id. at p. 2. Mr. Elliott does not address the Dataphase factors, either separately or jointly.

         The court recognizes plaintiff’s pro se status. However, “[e]ven pro se litigants must comply with court rules and directives.” Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir. 2005). Despite plaintiff’s failure to present argument and evidence on each of the Dataphase factors, the court must complete the analysis to determine whether issuing a preliminary injunction is appropriate. The Dataphase factors are:

(1) the threat of irreparable harm to the movant;
(2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant;
(3) the probability that movant will succeed on the merits; and
(4) the public interest.

Dataphase, 640 F.2d at 114. The most significant factor is the probability of success on the merits. Laclede Gas Co. v. St. Charles County, Mo., 713 F.3d 413, 419 (8th Cir. 2013) (internal quotations and citations omitted). However, “a finding of a likelihood of success on the merits only justifies preliminary relief if there is a risk of irreparable harm and the balance of the factors support an injunction.” CDI Energy Services v. West River Pumps, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.