Valentine v. PNC Financial Services Group, Inc.

          ORDER ADOPTING AND AFFIRMING SEPTEMBER 28, 2018 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the September 28, 2018 Recommendation (Doc. # 42) by United States Magistrate Judge S. Kato Crews that Plaintiff's Motion for an Ex Parte Temporary Restraining Order and Preliminary Injunction (Doc. # 6) be denied. Plaintiff timely filed an Objection to the Recommendation. (Doc. # 46.) Subsequently, Defendants PNC Financial Services Group, Inc., PNC Bank, N.A., and PNC Mortgage, a division of PNC Bank, N.A. (“Defendants”) filed a Response (Doc. # 54) and Plaintiff filed a Surreply (Doc. # 61). For the reasons that follow, the Court affirms and adopts the Recommendation.

         I. BACKGROUND

         The Magistrate Judge's Recommendation provides an extensive recitation of the factual and procedural background of this case. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, the Court will reiterate the factual background only to the extent necessary to address Plaintiff's objections.

         This case arises out of a dispute between Plaintiff Elet Valentine and Defendants regarding a loan transaction secured by real property located in Denver, Colorado, and the subsequent foreclosure on the property.

         On August 2, 2018, Plaintiff, acting pro se, filed a Motion for an Ex Parte Temporary Restraining Order or Preliminary injunction which sought to enjoin Defendants' foreclosure on her home despite the fact that a Colorado state court determined that Defendants were justified in proceeding with a foreclosure sale of the property. See (Doc. # 6 at 3; Doc. # 26 at 1). Plaintiff supplemented the Motion on August 16, 2018, by filing a document titled Plaintiff's Brief in Support of a Motion for Ex Parte Temporary Restraining Order or Preliminary Injunction. (Doc. # 25.) Defendants filed a Response to Plaintiff's Motion on August 17, 2018. (Doc. # 29.)

         On September 28, 2018, Magistrate Judge Crews issued a Recommendation that Plaintiff's Motion should be denied. (Doc. # 42.) Specifically, the Recommendation determined that Plaintiff has very little, if any, likelihood of prevailing on the merits of her claims. (Id. at 7.) Additionally, the Recommendation concluded that Plaintiff failed to show that she will suffer irreparable harm without an injunction to prevent the foreclosure sale.^[1] (Id. at 11.)

         On October 11, 2018, Plaintiff filed an Objection to the Recommendation. (Doc. # 46.) Plaintiff effectively objects to the Recommendation in its entirety. With respect to the Recommendation's conclusion that Plaintiff will not suffer irreparable harm in the absence of an injunction, Plaintiff asserts that her Motion and related filings actually establish that she met her burden with regard to irreparable harm. See (id. at 28).

         Subsequently, Defendants proceeded with the foreclosure sale based on the state court's determination that Defendants are the real party in interest, that there is a reasonable probability of a default under the Note and Deed of Trust sufficient for Defendants to proceed with the foreclosure, and that Plaintiff did not raise any valid defenses that would prevent the foreclosure. (Doc. # 54 at 2; Doc. # 70 at 2.) The sale took place on November 29, 2018. (Doc. # 70 at 2.) The state court entered an Order Approving Sale on December 21, 2018. (Doc. # 70-1 at 1-2.)

         II. STANDARD OF REVIEW

         After a magistrate judge issues a recommendation on a motion seeking injunctive relief, 28 U.S.C. § 636(b)(1) requires that the district judge conduct a de novo review of any part of the Recommendation to which a proper objection has been made. An objection is properly made if it is both timely and specific. U.S. v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir.1996). In conducting the review, a “district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). Any arguments raised for the first time in objections are deemed waived and need not be considered by the district court. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

         When a party proceeds pro se, as Plaintiff does here, the Court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Additionally, a pro se litigant is still bound by the rules of federal and appellate procedure. Abdelsamed v. United States, 13 F. App' x. 883, 884 (10th Cir. 2001).

         III. ANALYSIS

         Injunctive relief is an extraordinary remedy that should be granted only when the moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). A party seeking a preliminary injunction or temporary restraining order must show (1) the movant is substantially likely to succeed on the merits; (2) the movant will suffer irreparable injury if the injunction is denied; (3) the movant's threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest. Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016); Kaplan v. Bank of N.Y. Mellon Trust Co., No. 10-cv-02802-PAB, 2010 WL 4775725, at *1 (D. Colo. 2010) (citing Lundgrin v. Claytor, 619 F.2d ...