United States District Court, D. Massachusetts
HARRY M. ANDREWS, Plaintiff,
HSBC BANK USA, N.A., AS TRUSTEE FOR FREMONT HOME LOAN TRUST 2006-C, MORTGAGE BACKED CERTIFICATES, SERIES 2006-C Defendant.
MEMORANDUM & ORDER
Nathaniel M. Gorton, United States District Judge.
Harry Andrews (“Andrews” or
“plaintiff”) brought this action against HSBC
Bank USA, N.A. as Trustee for Fremont Home Loan Trust 206-C,
Mortgage Backed Certificates, Series 2006-C
(“HSBC”) in Massachusetts Superior Court in
October, 2016 and HSBC removed the case to this Court on
diversity grounds. In September, 2017, this Court issued a
Memorandum and Order (“the September M&O”)
denying plaintiff's motion to remand and allowing
defendant's motion to dismiss. Pending before this Court
are plaintiff's motions to alter the judgment and for a
preliminary injunction. For the reasons that follow, those
motions will be denied.
after filing his motion to alter the judgment, Andrews filed
his notice of appeal. This court retains jurisdiction to
consider the instant motions under Fed. R. App. P. 4(a)(4).
Under that Rule, a notice of appeal does not become effective
until an order of the district court disposes of the pending
motion to alter or amend the judgment (or other similar
motion). Fed. R. App. P. 4(a)(4)(B)(i).
prevail on a motion to alter or amend a judgment under
Fed.R.Civ.P. 59(e), the moving party must show that
“the original judgment evidenced a manifest error of
law” or that there was “newly discovered
evidence”. Biltcliffe v. CitiMortgage, Inc.,
772 F.3d 925, 930 (1st Cir. 2014) (citing Global Naps,
Inc. v. Verizon New England, Inc., 489 F.3d 13, 25 (1st
Cir. 2007)). Rule 59(e) motions are not the proper mechanism
to “regurgitate old arguments previously considered and
rejected” and relief “is granted
sparingly”. Id. (internal citation omitted).
urges this Court to alter its judgment with respect to the
dismissal of one part of one count of the complaint. He avers
that the notice sent by HSBC pursuant to M.G.L. c. 244 §
35A (“the § 35A notice”) was defective
because it did not include the name of the payment contact.
Andrews's motion simply rehashes the argument previously
rejected by this Court in its September M&O and does not
evidence a manifest error of law. As such, the motion to
alter the judgment will be denied.
also moves to enjoin the foreclosure sale of the property
pending appeal. To obtain a preliminary injunction, the
plaintiff must demonstrate: 1) a substantial likelihood of
success on the merits, 2) a significant risk of irreparable
harm if the injunction is withheld, 3) a favorable balance of
hardships and 4) a fit (or lack of friction) between the
injunction and the public interest. Nieves-Márquez
v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003)
(citation omitted). Of those factors, the likelihood of
success on the merits “normally weighs heaviest in the
decisional scales”. Coquico, Inc. v.
Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009).
contends that he is likely to prevail on the merits of the
three allegations in the complaint. He asserts that 1) HSBC
is unable to show it holds the note and therefore cannot
foreclose, 2) the § 35A notice was defective for failing
to identify a payment contact and giving three extra days to
cure and 3) the property description in the mortgage requires
reformation prior to foreclosure. Those allegations are
identical to the claims considered and dismissed by this
Court in its September M&O. For the reasons articulated
in that M&O, Andrews is not likely to succeed on the
merits of his claims.
the other requirements for injunctive relief may, in the
abstract, favor plaintiff, they do not overcome his
unlikelihood of success on the merits. Andrews will no doubt
be subject to substantial harm if his residence is foreclosed
upon and the hardship caused thereby would be greater than
the hardship to which HSBC would be subjected by an allowance
of a preliminary injunction.
Andrews is not entitled to injunctive relief because
likelihood of success on the merits is the
“critical” factor. Weaver v. Henderson,
984 F.2d 11, 12 (1st Cir. 1993) (“In the ordinary
course, plaintiffs who are unable to convince the trial court
that they will probably succeed on the merits will not obtain
Andrews has not shown a likelihood of success on the merits,
this Court declines to address the other factors in the
analysis and his motion for preliminary injunction will be
foregoing reasons, plaintiff's motions to alter the
judgment (Docket No. 18) and for preliminary injunction
(Docket No. 23) are DENIED.