United States District Court, D. Colorado
ORDER ADOPTING AND AFFIRMING SEPTEMBER 28, 2018
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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. (Id. at
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).
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.)
STANDARD OF REVIEW
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).
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).
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