Kush v. Servicing, CIVIL ACTION NO. 3:18-1483

AMY KUSH, Plaintiff v. BAYVIEW LOAN SERVICING, et al., Defendants

CIVIL ACTION NO. 3:18-1483

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

July 31, 2018

(JUDGE MANNION)

MEMORANDUM

I. BACKGROUND

On July 26, 2018, plaintiff Amy Kush filed, pro se, a complaint alleging violations of her constitutional rights under 42 U.S.C. §1983, against defendants Bayview Loan Servicing, the Law Firm of McCabe, Weisberg & Conway, the Luzerne County Sheriff, the Court of Common Pleas of Luzerne County, Pennsylvania, and the Wilkes-Barre General Hospital, regarding a Luzerne County Court mortgage foreclosure action. (Doc. 1). Plaintiff paid the filing fee. Plaintiff states that she is the owner of real property located at 258 Frederick Street, Kingston, Pennsylvania, and indicates that her property is scheduled for a Sheriff's sale on August 3, 2018.

Plaintiff styles her action as a "Complaint for Declaratory and Injunctive Relief and for Damages." Plaintiff alleges that the sale of her property is proceeding in violation of her due process rights since Bayview failed to provide proof that it is the lawful holder of her loan, proof of the amount she allegedly owes on it and proof of her alleged default, despite her demands for such proof. Plaintiff states that even though she objected to the mortgage foreclosure action, the Luzerne County Court granted Bayview judgment which has led to her property being scheduled for the upcoming Sheriff's sale. Plainitff also states that she objected to the mortgage foreclosure action in the Luzerne County Court and alleged that the action was "based upon her gender" and her "choice of occupation as mom." Thus, plaintiff claims that she is being deprived of her property without due process and that she is being "denied the equal protection of the laws" in violation of the 4^th and 14^th Amendments. Plaintiff also alleges that after she notified the defendants that her rights were being violated by letter dated May 23, 2018, "the sheriff had her picked up on a mental health warrant [under Pennsylvania law]" and, she was held against her will for 20 days and forced to take drugs. As such, plaintiff also raises a First Amendment retaliation claim against defendants.

Plainitff seeks the court to declare that the defendants violated her constitutional rights, and she requests injunctive relief to prevent the sale of her property, as well as compensatory and punitive damages. Since plainitff essentially seeks an injunction to prevent the August 3, 2018 sale of her property, this case was referred to the undersigned as an emergency matter.

The court has jurisdiction over this case pursuant to 28 U.S.C. §1331 and 28 U.S.C. §1343(a) because plaintiff avers violations of her constitutional rights under the First, Fourth and Fourteenth Amendments of the U.S. Constitution. Venue is appropriate in this court since the alleged constitutionalviolations occurred in this district and all parties are located here. See 28 U.S.C. §1391.

After reviewing plaintiff's complaint, the court will deny plaintiff's request for immediate injunctive relief. The court will dismiss plaintiff's due process claims with prejudice for lack of jurisdiction. The court will, however, allow plainitff to amend her complaint regarding only her Fourteenth Amendment equal protection claim and her First Amendment retaliation claim since her original complaint fails to state cognizable claims.

II. STANDARDS

A. Section 1983

To state a claim under section 1983, a plaintiff must meet two threshold requirements: 1) that the alleged misconduct was committed by a person acting under color of state law; and 2) that as a result, she was deprived of rights, privileges, or immunities secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986). If a defendant fails to act under color of state law when engaged in the alleged misconduct, a civil rights claim under section 1983 fails as a matter of jurisdiction, Polk Cnty. v. Dodson, 454 U.S. 312, 315 (1981), and there is no need to determine whether a federal right has been violated. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

"A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). See also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)(citing Rode). "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode, 845 F.2d at 1207. Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).

B. Injunctive Relief

The grant of injunctive relief, including preliminary injunctive relief, is an extraordinary remedy and it should only be granted in limited circumstances. Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994) (quoting Frank's GMC Truck Cent., Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988)) (alterations in original). The court's ultimate decision to deny a preliminary injunction is discretionary, though legal and factual determinations will be reviewed according to their normal standard. See Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 156 (3d Cir. 2002).

In order to obtain a preliminary injunction, the moving party must demonstrate the following:

(1) the likelihood that the plaintiff will prevail on the merits at final hearing; (2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; (3) the extent to which the defendantwill suffer irreparable harm if the preliminary injunction is issued; and (4) the public interest.

Id. at 1427 (quoting Merchants & Evans, Inc. v. Roosevelt Bldg. Prods., 963 F.2d 628, 623-33 (3d Cir. 1992)). More specifically, the third prong requires a balancing of harms between the plaintiff and the defendant and a finding that the balance favors the plaintiff's request for relief. See Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 131 (3d Cir. 2017).

"The injunction should issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief." Id. Moreover, it is only if the first two prongs are satisfied that the court must inquire into the final two factors. Tenafly, 309 F.3d at 157. Thus, "a failure to show a likelihood of success or a failure to demonstrate irreparable injury must necessarily result in the denial of a preliminary injunction." In Re Arthur Treacher's Franchise Litig., 689 F.2d 1137, 1143 (3d Cir. 1982). However, if a plaintiff proves the first two requirements, it will almost always be the case that the public interest favors preliminary relief, Issa, 847 F.3d at 143, leaving the crux of the matter to the balance of competing interests.

III. DISCUSSION

Plaintiff claims that her constitutional rights under the Fourth and Fourteenth Amendments were violated by the taking of her property withoutdue process.¹ She also asserts a Fourteenth Amendment equal protection claim and a First Amendment retaliation claim.

As discussed above, the alleged facts indicate that Bayview obtained a mortgage foreclosure judgment against plaintiff in Luzerne County Court. Plaintiff states that the Luzerne County Court granted Bayview summary judgment over her objections that it failed to prove that it held her mortgage loan and that she defaulted on the loan. Plaintiff seeks injunctive relief in the form of an order barring the foreclosure sale of her Luzerne County property by the Sheriff. As stated, the sale is allegedly scheduled for August 3, 2018.

The court finds that plaintiff has not shown a likelihood of success on the merits since she has adequate state court remedies to challenge the foreclosure judgment issued by the Luzerne County Court as well as the upcoming foreclosure sale of her property. Further, if her property is sold by the Sheriff, plaintiff has remedies available to her in state court to challenge the Luzerne County Sheriff's Deed. Pennsylvania Rule of Civil Procedure 3132 allows a party to set aside a sale. This procedure is "grounded in equitable principles and is addressed to the sound discretion of the hearingcourt." Kaib v. Smith, 684 A.2d 630, 631 (Pa. Super. Ct. 1996). If the judgment entered is void, the sale will also be declared void. Harris v. Harris, 239 A.2d 783, 784-85 (Pa. 1968). In addition, a sale may be set aside where there are irregularities and deficiencies in the sale, including defects in advertisement. See Hampton v. Swan, 109 A. 674 (Pa. 1920); Allegheny Cty. v. Golf Resort, Inc., 974 A.2d 1242, 1246 (Pa. Commw. Ct. 2009). Thus, to deem the harm of the sale "irreparable" at this stage of the case would ignore the post-deprivation safeguards, in addition to the pre-deprivation safeguards, provided to the plaintiff under Pennsylvania law.

The plaintiff will be able to file motions in state court to set aside the Sheriff's sale and to strike the Sheriff's Deed conveying her property to a buyer. See Jung Yun v. Bank of America, N.A., 2016 WL 7324554 (M.D.Pa. Dec. 16, 2016); Gangoo v. Federal Home Loan Mortgage Corporation, 2017 WL 679972 (M.D.Pa. Feb. 21, 2017). Additionally, plainitff can also appeal the foreclosure judgment entered by the county court to the Pennsylvania Superior Court. Id. Plaintiff does not indicate if she availed herself of any of the state court remedies to challenge the foreclosure judgment and, she does not allege that these remedies are somehow inadequate or ineffective.

Since plaintiff has adequate available state court remedies to challenge the mortgage foreclosure judgment issued, to challenge the order permitting the foreclosure sale of her...