MEMORANDUM OF LAW IN SUPPORT OF TRO and/or
PRELIMINARY INJUNCTION
Plaintiff Mr. Muhammad incorporates fully and by this specific reference the
statements in paragraphs 1 through 22 of this Petition/Complaint as if stated fully
herein.
“A motion for interlocutory injunction or a TRO is an extraordinary motion,
which is time sensitive, unlike other motions, because it seeks to preserve the status
quo until a full hearing can be held to avoid irreparable harm.” Focus Entertainment
International, Inc., v. Partridge Greene, Inc. (253 Ga. App. 121) (558 SE2d 440)
(2001).
The Focus Court went on to explain that foreclosure is one such instance which
“injunction is appropriate” because “when an interest in land is threatened with
harm”, “such harm is deemed to be irreparable to the unique character of the property
interest, i.e., money damages are not adequate compensation to protect the interest
harmed.” See the following:
“(a) Land, under Georgia law, is deemed sufficiently unique that it
is entitled to equitable remedies to protect such interest in land.
Rife v. Corbett, 264 Ga. 871 (455 SE2d 581) (1995) (injunction to
protect an easement); Benton v. Patel, 257 Ga. 669, 672 (1) (362
SE2d 217) (1987) (injunction to stop foreclosure); Black v.
American Vending Co., 239 Ga. 632, 634 (2) (238 SE2d 420)
(1977) ("the law regards as sufficiently unique that equity will
enforce a contract for [land] sale or lease"); Clark v. Cagle, 141 Ga.
703, 705-706 (1) (82 SE 21) (1914) (specific performance of
contract to sell land). Therefore, when an interest in land is
threatened with harm, equitable injunctive relief is appropriate,
because such harm is deemed to be irreparable to the unique
character of the property interest, i.e., money damages are not
adequate compensation to protect the interest harmed. See
generally Central of Ga. R. Co. v. Americus Constr. Co., 133 Ga.
392, 398 (65 SE 855) (1909) (irreparable injury defined to enjoin a
nuisance); see also Roth v. Connor, 235 Ga. App. 866, 868-869 (1)
(510 SE2d 550) (1998) (property interests of grantor and others in
restrictive covenants for their benefit).”
Plaintiff has made a showing that without an Emergency Order granting a
Temporary Restraining Order or Preliminary Injunction, Plaintiff will be irreparably
harmed. Further, Plaintiff’s Petition is Verified, Plaintiff has shown the court, that
had he been properly, legally Noticed before foreclosure actions began, he would have
taken the proper steps to prevent such action. Plaintiff has further shown the Court
that until only a very few short days ago, he had no knowledge of the Legal Notice
Ads being run.
In times such as now, with mortgage fraud at the highest level in history, there
has to be some evidence presented to you before you start paying them instead of the
entity your loan originated with. Plaintiff been denied his Rights to notify “the debt
collector in writing within the thirty-day period described in subsection (a) that the
debt, or any portion thereof, is disputed, or that the consumer requests the name and
address of the original creditor, the debt collector shall cease collection of the debt, or
any disputed portion thereof, until the debt collector obtains verification of the debt or
any copy of a judgment, or the name and address of the original creditor, and a copy
of such verification or judgment, or name and address of the original creditor, is
mailed to the consumer by the debt collector.”1
O.C.G.A.. §9-11-65 allows the Court to grant such Orders without notice to
opposition in certain circumstances.
O.C.G.A. §9-11-65
1
Fair Debt Collection Practices Act, Section 809(b)
(b) Temporary restraining order; when granted without notice;
duration; hearing; application to dissolve or modify.
“A temporary restraining order may be granted without written or
oral notice to the adverse party or his attorney only if: (1) It clearly
appears from specific facts shown by affidavit or by the verified
complaint that immediate and irreparable injury, loss, or damage
will result to the applicant before the adverse party or his attorney
can be heard in opposition; and (2) … certifies to the court, in
writing, the efforts, if any, which have been made to give the notice
and the reasons supporting the party's claim that notice should not
be required.”
Further, because Defendants would be required to cease all foreclosure
proceedings until such time as the debt was validated; and Plaintiff Mr. Muhammad is
ignorant of the true identity of the actual holder in due course with First State Bank.
Therefore, allowing the Sale under Power to be completed would expose Plaintiff to
potentially ruinous financial liability in the event that the actual holder in due course
should one day make a claim upon the Note.
CONCLUSION AND PRAYER FOR RELIEF
Plaintiff Mr. Muhammad incorporates fully and by this specific reference the
statements in paragraphs 1 through 22 and all paragraphs contained within Plaintiff’s
Memorandum of Law as if stated fully herein.
Plaintiff in this matter, would have approached the Defendants in the proper
manner as required by law in a good faith attempt to remedy what could result in the
loss of Plaintiff’s property through no fault of his own. The Defendants on the other
hand, refused to adhere to the mandatory state and federal laws that would have
allowed Plaintiff to make requests for documented evidence of their claims, blatantly
showing bad faith, and a healthy lack of respect for the laws of this state.
Plaintiff has shown that Defendants violated Plaintiff Mr. Muhammad’s rights
under the Fair Debt Collection Practices Act thereby entitling Plaintiff Mr.
Muhammad to all appropriate relief provided for by statute.
Plaintiff has shown that Defendants violated Plaintiff Mr. Muhammad’s rights
under OCGA § 44-14-162. (b) thereby entitling Mr. Muhammad to all appropriate
relief provided for by statute.
Plaintiff Mr. Muhammad regrets the emergency nature of this petition and
prays the Courts GRANT the following relief:
(a) GRANT an Emergency Temporary Restraining Order and/or Preliminary
Injunction to prevent the foreclosure of Plaintiff Mr. Muhammad’s properties.
(b) COMPEL Production of the Original Promissory Note(s).
(c) COMPEL proof of any assignments, lien or any other instrument that proves any
claims by any alleged holders in due course.
(d) COMPEL validation of the alleged Debt
(e) COMPEL verification of the loan number and the use of the correct loan number
in any proceeding henceforth.
(f) Compel compliance with OCGA § 44-14-162.(b).
(g) GRANT Plaintiff Mr. Muhammad all court costs and court related fees.
(h) GRANT Plaintiff Mr. Muhammad any and all other and/or further relief allowed
by law and/or which this Court deems just and proper.
