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Colahar v. Wells Fargo Bank N.A.

United States District Court, D. Delaware

May 28, 2014

RUDOLPH COLAHAR and JAN'E COLAHAR, Plaintiffs,
v.
WELLS FARGO BANK N.A. and U.S. BANK, NATIONAL ASSOCIATION, Defendants

Decided May 27, 2014

Jane Colahar, Plaintiff, Pro se, Newark, DE.

Rudolph Colahar, Plaintiff, Pro se, Newark, DE.

For Mortgage Contracting Services, LLC, Movant: John A. Elzufon, LEAD ATTORNEY, Elzufon Austin Reardon Tarlov & Mondell, P.A., Wilmington, DE.

Page 604

MEMORANDUM

SUE L. ROBINSON, UNITED STATES DISTRICT JUDGE.

1. Introduction. Plaintiffs Jan'e Colahar (" Jan'e" ) and Rudolph Colahar (" Rudolph" ) (together " plaintiffs" ) proceed pro se and have paid the filing fee. They filed this lawsuit against defendants Wells Fargo Bank N.A. (" Wells Fargo" ) and U.S. Bank, National Association (" U.S. Bank" ) (together " defendants" ) alleging the wrongful foreclosure of real property located at 53 Hempstead Drive, Newark, Delaware, " involving a bankruptcy discharge." (D.I. 2.) Plaintiffs challenge a judgment as " void" and allege that " the expected end results are an offset of the balance that the alleged bank claim[s] is owed on the property, even though the house was discharge[d] in bankruptcy." ( Id. at ¶ ¶ 2, 12)

Page 605

2. Background. On April 25, 2014, Jan'e filed a motion for an injunction and restraining order (D.I. 5) against defendant Wells Fargo and non-party Mortgage Contracting Services, LLC (" MCS" ), opposed by MCS (D.I. 10)[1] to stop them from taking her home. Jan'e contends that Wells Fargo hired MCS to seize the property. She indicates that the " house has not been sold or auction[ed]." (D.I. 5, ¶ 4) In addition, she contends that items have been stolen from the property and that Wells Fargo has attempted " to have the electric company to change the bill in their name." ( Id. at ¶ 6)

3. In its opposition to the motion, MCS provides evidence that the real property at issue is the subject of a foreclosure action in the Superior Court of the State of Delaware in and for New Castle County (" Superior Court" ), U.S. Bank v. Colahar, C.A. No. N09L-11-024 JAP, that commenced on November 4, 2009. (D.I. 10, Ex. A) The property was most recently scheduled for a sheriff's sale on April 8, 2014, but the sale was stayed when Rudolph filed a Chapter 13 petition for bankruptcy in the United States Bankruptcy Court for the District of Maryland (" Maryland Bankruptcy Court" ) on April 3, 2014, In re: Colahar, Bankr. No. 14-15282-PM (Bankr. D. Md.); ( Id. at Exs. A, B, C) During the relevant time-frame, Rudolph has filed two other bankruptcy petitions in the Maryland Bankruptcy Court, both of which resulted in an automatic stay. See In re: Colahar, Bankr. No. 11-25341 (Bankr. D. Md.) filed July 27, 2011; In re: Colahar, Bankr. No. 13-23620 (Bankr. D. Md.) filed August 9, 2-13. On April 22, 2014, the Maryland Bankruptcy Court dismissed In re: Colahar, Bankr. No. 14-15282-PM after Rudolph failed to pay the required filing fee. ( Id. at Ex. D) In the same order, the Maryland Bankruptcy Court terminated the automatic stay that had been imposed pursuant to 11 U.S.C. § 362(a). ( Id. ) Jan'e filed the instant motion on April 25, 2014.

4. Plaintiffs' complaint/notice of lis pendens states that " on April 12, 2011, the property at issue was identified by the bankruptcy trustee on grounds that there are liens against the property of greater value then [sic] the property itself." (D.I. 2, ¶ 4) Records from the United States Bankruptcy Court for the District of Delaware (" Delaware Bankruptcy Court" ) indicate that Jan'e, like Rudolph, filed bankruptcy proceedings during the relevant time-frame, both of which included the real property at issue as property of the bankruptcy state; the first filed on September 13, 2010, and the second filed on July 9, 2012. See In re Colahar, Bankr. No. 10-12868-BLS (Bankr. D. Del.); In re Colahar, Bankr No. 12-12014-BLS (Bankr. D. Del.). In both proceedings, the Delaware Bankruptcy Court granted relief from the automatic stay with respect to the property at issue upon U.S. Bank's motion and a subsequent finding that U.S. Bank's interest in the property was not adequately protected. The Delaware Bankruptcy Court stated, " [US Bank] is hereby granted relief from the automatic stay, and the automatic stay is terminated, with respect to [US Bank's] interest in the property. [US Bank] is hereby permitted to exercise its rights under applicable non-bankruptcy law against the property, including but not limited to foreclosure of the mortgage." In re Colahar, Bankr. No. 10-12868-BLS (Bankr. D. Del.) at D.I. 33; In re Colahar, Bankr. No. 12-12014-BLS (Bankr. D. Del.) at D.I. 23. Both bankruptcy proceedings filed in the Delaware Bankruptcy Court are closed. See In re Colahar, Bankr. No. 10-12868-BLS (Bankr. D. Del.) at D.I. 66;

Page 606

In re Colahar, Bankr. No. 12-12014-BLS (Bankr. D. Del.) at D.I. 24.

5. Standard of Review. 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 interest." NutraSweet Co. v. Vit-Mar Enterprises, Inc., 176 F.3d 151, 153 (3d Cir. 1999) (" NutraSweet II" ). The elements also apply to temporary restraining orders. See NutriSweet Co. v. Vit-Mar Enterprises., Inc., 112 F.3d 689, 693 (3d Cir. 1997) (" NutraSweet I" ) (a temporary restraining order continued beyond the time permissible under Rule 65 must be treated as a preliminary injunction, and must conform to the standards applicable to ...


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