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Miller v. Pennymac Corp.

United States District Court, D. Delaware

January 21, 2014

MARK MILLER, Plaintiff,
PENNYMAC CORP., Defendant.

Mark L. Miller, Pro Se Plaintiff, Millsboro, Delaware.

David A. Dorey and Adam V. Orlacchio, Esquires, Blank Rome LLP, Wilmington, Delaware. Attorneys for Defendant.


LEONARD P. STARK, District Judge.


Plaintiff Mark L. Miller ("Plaintiff") proceeds pro se and has paid the filing fee. He filed this lawsuit pursuant to 28 U.S.C. § 1331 asserting a federal question he contends arises under the laws of the United States. (D.I. 1) Plaintiff challenges a judgment issued in Delaware State Court as "void for lack of subject matter jurisdiction and for want of jurisdiction over the parties." ( Id. at ¶ 30)


Plaintiff initiated this lawsuit on November 19, 2013. (D.I. 1) Prior to filing this lawsuit, the Superior Court in and for Sussex County, Delaware ("Superior Court") had entered judgment in favor of Defendant (the plaintiff in the State court case) and against Plaintiff in the amount of $477, 006.46. See Miller v. PennyMac Corp., 2013 WL 5234437 (Del. Sept. 16, 2013). Plaintiff appealed the decision to the Supreme Court of the State of Delaware. The Delaware Supreme Court set forth the following facts:

On February 12, 2007, the Millers executed and delivered a mortgage agreement to Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit. The mortgage document secured Mark Miller's obligations under a note and became a first priority lien on the Millers' property. The Millers stopped making payments on the loan in July 2008. In December 2008, the Millers were notified that they were in default. The default was not cured, and the loan was accelerated. On May 11, 2009, American Brokers Conduit assigned the mortgage to CitiMortgage. In November 2011, CitiMortgage filed a complaint against the Millers seeking all sums due under the mortgage. On October 4, 2012, CitiMortgage assigned the mortgage to PennyMac. The Superior Court, over the Millers' objection, permitted PennyMac's substitution as plaintiff in the case. Following a trial on January 24, 2013, the Superior Court entered a judgment in PennyMac's favor in the amount of $477, 006.46.

Id. at *1.

Plaintiff raised three issues on appeal: (1) the Superior Court erred in allowing PennyMac to be substituted for CitiMortgage as the plaintiff; (2) the Superior Court erred in refusing to grant the Millers' request for a continuance and in denying their request to amend their answer; and (3) the Superior Court erred in failing to accept the Millers' defense of avoidance of the mortgage. Id. The Delaware Supreme Court affirmed the Superior Court, finding: (1) no error of law in the Superior Court's conclusion that PennyMac was the holder in due course of the note and the mortgage and thus had standing to enforce the debt by pursuing an in rem mortgage proceeding against the Millers; (2) the Superior Court's denial of the Millers' motion for a continuance was neither arbitrary nor capricious; and (3) there was no basis to review the third issue on appeal. Id. at *2-3.

On January 16, 2014, Plaintiff filed an emergency notice of application and ex parte application for temporary restraining order and preliminary injunction, asking this Court to enjoin Defendant and its "officers, agents, servants, employees, affiliates, and attorneys, and those persons in active concert or participation or privities with any of them, from taking possession of" Plaintiff's real property.[1] (D.I. 24 at ¶ 2)


An applicant for a temporary restraining order must meet the same standards as an applicant for a preliminary injunction. See Nutrisweet Co. v. Vit-Mar Enterprises., Inc., 112 F.3d 689, 693 (3d Cir. 1997) (" NutraSweet I" ) (stating temporary restraining order that continued beyond time permissible under Fed.R.Civ.P. 65 must be treated as preliminary injunction and must meet standards applicable to preliminary injunctions); see also In re FKF Madison Park Group Owner, LLC, 2011 WL 350306, at *4 (Bankr. D. Del. Jan. 31, 2011). A preliminary injunction is "an extraordinary remedy that should be granted only if (1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm to the plaintiff; (3) granting the injunction will not result in irreparable harm to the defendant; and (4) granting the injunction is in the public ...

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