Rubacky v. Morgan Stanley

2003 DNH 227

• Court: District Court, D. New Hampshire
• Decided: December 31, 2003
• Docket: CV-03-328-B
• Status: Published

Opinion

Rubacky v . Morgan Stanley CV-03-328-B 12/31/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Tricia L . Rubacky, Plaintiff

v. Civil N o . 03-328-B Opinion N o . 2003 DNH 227 Morgan Stanley Dean Witter Credit Corporation, Defendant

REPORT AND RECOMMENDATION

Plaintiff’s “Urgent Motion for Injunction and Protection”

was filed on December 2 9 , 2003, and referred to me for a report

and recommendation. It was also served on defense counsel by

mail on December 2 9 .

Background

Plaintiff initiated this pro se suit by filing a “Motion for

Preliminary Injunction” on July 3 0 , 2003 (document n o . 4 ) . That

motion requested that defendant be enjoined from foreclosing on

plaintiff’s home. The motion was referred to me for a hearing

and recommendation. In an August 4 , 2003, Report and

Recommendation, I found that plaintiff was unlikely to succeed on

the merits on any of the five grounds advanced and recommended that the request for injunctive relief be denied (document n o .

10). The Report and Recommendation was approved after

consideration of the objection (document n o . 3 ) . A request to

reconsider that order was declined on August 1 8 , 2003.

At the August 4 hearing, plaintiff also admitted that no

mortgage payments had been made for nine (9) months as the money

was used to pay medical expenses. She also complained that the

foreclosure notice listed her prior male name. The latter, in

fact, was necessary since she granted the mortgage and took title

in that male name.

At the preliminary pretrial, defense counsel indicated that

plaintiff’s actions were impeding the consummation of the

foreclosure sale. Plaintiff, for her part, complained that the

purchasers, at foreclosure, were interfering with her peace and

enjoyment of the house. Since defense counsel had filed no

motion and the purchasers were not parties to the suit, no action

was taken by the court.

Since the date of the pretrial, the purchasers at the first

foreclosure sale have refused to complete the sale. See document

n o . 4 1 , Exhibit C . The original motion/complaint (document n o .

2 4 ) has never been amended by plaintiff so plaintiff’s claims are

the same as those existing on August 4 .

Discussion

Plaintiff’s new “Urgent Motion” is not supported by any

affidavit. It should not be considered as an ex parte request

for temporary restraining order under Fed. R. Civ. P. 65(b),

therefore, the time to respond to the “urgent” motion by

defendant is not until January 2 0 , 2003. Nevertheless, since

plaintiff apparently is expecting a foreclosure in the near

future1 and, since her motion is facially insufficient, I am

considering the motion without benefit of a response.

Paragraph “ 1 " of the motion is a restatement of allegations

and arguments made in her first effort at an injunction. Those

claims were considered and rejected by the prior Report and

Recommendation and prior orders. Any request to reconsider or

appeal them is time barred.

Paragraph “ 2 " related to allegations concerning Morgan

Stanley’s mutual funds actions, actions of the individuals who

1 Since January 4 , 2003, is a Sunday, it is unlikely that any foreclosure is scheduled for that date.

3 successfully bid at the first foreclosure, the friendliness of

plaintiff’s puppy, tactics of defense counsel, attempted

cancellation of her homeowner’s policy and unsubstantiated fears

of arson. These allegations bear no relevance to plaintiff’s

cause of action and four of them relate to individuals who are

not parties to the case. None of these allegations, if true,

would serve as a basis to enjoin the foreclosure.

Paragraph “3" again relates to persons who are not parties

to this suit and the allegations provide no basis for an

injunction against defendant.

The allegations in paragraph “ 4 " related to a “hold back at

closing” which has already been litigated and rejected.

(Document n o . 1 0 , ¶ C ) .

Paragraph “5" relates to the bond requirement, if an

injunction were to issue. Since I do not recommend an

injunction, nor even a hearing on one, the bond issue is not

relevant.

Plaintiff is over $20,000 in default on her mortgage. She

has not alleged any facts in her motion which would, even if

true, entitle her to enjoin the foreclosure sale under either New

Hampshire or federal law. I recommend the motion be denied.

4 Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v . Gordon, 979 F.2d 1 1 , 13-14 (1st Cir. 1992); United

States v . Valencia-Copete, 792 F.2d 4 , 6 (1st Cir. 1986).

SO ORDERED.

James R. Muirhead United States Magistrate Judge

December 3 1 , 2003

cc: Tricia L . Rubacky, pro se Victor Manougian, Esq.