United States District Court, D. New Hampshire
Mottram, pro se
Mottram, pro se
Patrick Kennedy, Esq.
REPORT AND RECOMMENDATION
k. Johnstone United States Magistrate Judge.
the court is the pro se plaintiffs' request for a
preliminary injunction, asserted in their complaint (Doc. No.
1). The request has been referred to the undersigned
magistrate judge for a report and recommendation. See Jan. 5,
2017 Order (Doc. No. 2). Plaintiffs requested a preliminary
injunction enjoining defendant Wells Fargo from taking any
further action to foreclose on their mortgage, and from
holding a foreclosure sale and auctioning their home, until
Wells Fargo has completed the loan modification process to
modify the home loan at issue.
Preliminary Injunction Standard
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.'”
Glossip v. Gross, 135 S.Ct. 2726, 2736 (2015) (citation
omitted). The likelihood of success and irreparable harm are
the factors that weigh most heavily in the analysis. See Esso
Std. Oil Co. v. Monroig- Zayas, 445 F.3d 13, 18 (1st Cir.
2006); see also Voice of the Arab World, Inc. v. MDTV Med.
News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)
(“‘[p]erhaps the single most important
prerequisite for the issuance of a preliminary injunction is
a demonstration that if it is not granted the applicant is
likely to suffer irreparable harm before a decision on the
merits can be rendered'” (citation omitted)). The
burden of proof is on the movant. See Esso Std. Oil Co., 445
F.3d at 18.
court may rule on a motion for a preliminary injunction on
the papers if it has before it “‘adequate
documentary evidence upon which to base an informed, albeit
preliminary conclusion, '” and the parties have
been afforded “‘a fair opportunity to present
relevant facts and arguments to the court, and to counter the
opponent's submissions.'” Campbell Soup Co. v.
Giles, 47 F.3d 467, 470-71 (1st Cir. 1995) (citations
omitted). The parties have had such an opportunity to date,
and an additional opportunity is provided by the objection
period as to this Report and Recommendation.
harm most often exists where a party has no adequate remedy
at law.” Charlesbank Equity Fund II, Ltd. P'ship v.
Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004).
“A finding of irreparable harm must be grounded on
something more than conjecture, surmise, or a party's
unsubstantiated fears of what the future may have in
mortgage and note at issue were signed by Darrin Mottram
only. See Note (Doc. No. 8-2, at 3); Mortgage (Doc. No. 8-3,
at 9). Plaintiff Stacey Mottram is not a signatory to either
of those instruments. Darrin Mottram has filed for bankruptcy
under Chapter 13, and that case is currently pending as In re
Mottram, No. 17-10207-BAH (Bankr. D.N.H.) (“Bankruptcy
Petition”). See generally Doc. No. 11.
Wells Fargo has filed a status report in this case (Doc. No.
12), stating that the February 24, 2017 foreclosure auction
was cancelled in light of the automatic stay. Defendant
further reported that it has no information to report to this
court regarding the likelihood of an auction occurring while
the bankruptcy proceeding is pending.
court's review of PACER indicates that the Bankruptcy
Petition remains pending at this time, and that the
bankruptcy trustee has moved to dismiss that petition and to
bar Darrin Mottram from refiling any Chapter 13 petition for
up to two years. See Mot. to Dismiss & Proscribe Further
Filings, Bankruptcy Petition (Bankr. D.N.H., filed Feb. 24,
2017) (ECF No. 11). The ...