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Cannick v. Catrina Trust

United States District Court, D. South Carolina, Beaufort Division

December 14, 2017

Jacqueline Cannick, Plaintiff,
v.
Catrina Trust, a Division of Wilmington Savings Fund Society, FSB, as Trustee of ALRP Trust 3. Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         Plaintiff Jacqueline Cannick, proceeding pro se, filed the instant action on September 22, 2017, against Defendant Catrina Trust. (See generally ECF No. 1.)[1] This case arises out of a foreclosure proceeding in state court; Cannick alleges that she “lost her home due to wrongful foreclosure by the Defendant.” (ECF No. 1 at 1). On December 13, 2017, Cannick filed a Motion for Temporary Restraining Order (ECF No. 30). Cannick asks for a temporary restraining order (“TRO”) to “restrain[] and enjoin[]” the Defendant and its “respective employees, agents, affiliates and all those in active concert or participation” with Defendant “from transferring, disposing of and evicting” Cannick “from the real property located at 371 Old House Road, Ridgeland, SC 29936.” (ECF No. 30 at 1 of 5). Defendant filed a Response in Opposition to Cannick's motion. (ECF No. 31).[2]

         I. BACKGROUND

         In her Complaint, Cannick alleges that she signed a mortgage on July 25, 2007, a judgment of foreclosure was entered on April 1, 2016, and the property was sold at public auction on June 8, 2016. Compl. ¶ 17. She asserts that she “has been fighting to stop this foreclosure action since April 2014.” Id. ¶ 18.[3]Although some of Cannick's allegations are difficult to follow, Cannick alleges, inter alia, that the “Defendant who has serviced the loan of the Plaintiff did not fund the loan, did not loan any money to the Plaintiff, and is not the holder in due course of the Plaintiff and has no lawful right to have foreclosed upon Plaintiff's [sic] home.” Id. ¶ 42. She alleges the Defendant's “deceptive scheme . . . unjustly enriched Defendant to the detriment of Plaintiff by causing Defendant to receive monetary payments from Plaintiff and money to which Defendant was not entitled because the Defendant did not fund the loan of the Plaintiff.” Id. ¶ 36. She also alleges the Defendant “failed to acknowledge Plaintiff's military status during the foreclosure process denying her the rights associated with the Servicemembers Civil Relief Act.” Id. ¶ 22. According to Cannick, her home was “sold by the Defendant unlawfully.” Id. ¶ 51. Cannick lists the following causes of action in her Complaint: (1) “Wrongful Foreclosure”, (2) “Unjust Enrichment”; (3) “Violation of the Servicemembers Civil Relief Act”; (4) “Injunctive Relief”; and (5) “Declaratory Relief.” See generally ECF No. 1.

         II. DISCUSSION

         As noted above, Cannick seeks a TRO to prevent her eviction “from the real property located at 371 Old House Road, Ridgeland, SC 29936.” ECF No. 30, 1. She asserts that unless a TRO is granted, “it is anticipated” that the Sheriff will “conduct an eviction on December 13, 2017, forcing the [Plaintiff] and her children from the home.” Id. at 1-2. Cannick states,

To allow such an action[] would cause the [Plaintiff] to suffer immediate and irreparable loss, damage or injury. The [Plaintiff] has reason to believe the eviction would occur before [Defendant(s)] or their attorney(s) can be heard in opposition to this motion for a temporary restraining order, and before a hearing can be had on the . . . Motion for a Temporary Injunction

Id. at 2. She asserts, upon information and belief, that Defendant “wrongfully provided false information . . . during the foreclosure process.” Id. Cannick alleges the Defendant “violated several [f]ederal laws pertaining to home mortgages and foreclosure specifically the Real Estate Settlement Procedures Act.” Id. She further states,

The [Cannick] would further assert that [she] will likely succeed on the merits of the litigation and that there is no adequate remedy at law to protect . . . [her]. The temporary restraining order and temporary injunction are needed to preserve the status quo to avoid possible irreparable injury to the [Cannick] pending the litigation of the claims asserted in this action.

Id.

         A temporary restraining order or a preliminary injunction is “an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); see also U.S. Dep't of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1 (4th Cir. 2006). To obtain a TRO, a Plaintiff must show:

(1) that she is likely to succeed on the merits,
(2) that she is likely to suffer irreparable harm in the absence of ...

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