Dates v. HBSC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CARLEAN DATES, et al.,

Plaintiffs,

Case No. 1:24-cv-81

v.

JUDGE DOUGLAS R. COLE

HSBC, et al.,

Defendants.

OPINION AND ORDER

Carlean Dates and Malik Ali (Dates’s husband) seek a temporary restraining

order (TRO) preventing them from being removed from “their” house located at 12062

Hazelhurst Drive, Cincinnati, Ohio, 45240 (the Hazelhurst property). The Court uses

quotations because, while it is admittedly the house in which they reside, it is not

their house. Rather, as a result of actions taken under a state court foreclosure order

and in particular a 2018 Sheriff’s sale pursuant to that order, the house now belongs

to HSBC, the assignee of the mortgage note on the property, who has told Dates to

leave. But, like a modern-day Bartleby, Dates (and her husband) would prefer not to.

To thwart HSBC’s efforts to foreclose and to obtain possession, she has filed

for bankruptcy—five times. Those filings ultimately resulted in an order from that

court imposing a two-year ban on her filing in bankruptcy due to her abuse of the

system. She also sued the bankruptcy judge and trustee from the most recent

bankruptcy action in both their individual and official capacities, in this Court,

essentially for little more than the fact they rejected her claims. That unsuccessful

suit recently resulted in this Court (via the undersigned) dismissing Dates’s

complaint as legally frivolous and warning her that similar conduct in the future

would subject her to sanctions. And earlier this month, the state court, which already

had held her in contempt for refusing to vacate the property on January 5, 2023 (and

perhaps emboldened by the bankruptcy court’s imposition of sanctions), amended its

contempt order to authorize the Sheriff to forcibly evict her, any other occupants, and

any personal property remaining on the premises on or after February 29, 2024.

Undeterred by an unbroken nearly ten-year string of adverse determinations

finding that Dates has no remaining property interest in the home, Plaintiffs

responded with the instant action. They now claim that, in seeking foreclosure and

eviction, HSBC has violated various federal laws, including the Dodd-Frank Wall

Street Reform and Consumer Protection Act (Dodd-Frank), 12 U.S.C. § 5301 et seq.,

and the civil Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.

§ 1961 et seq. (Compl., Doc. 3, #17–24). And given their impending eviction, they also

sought the TRO that is the subject of this Opinion and Order. (Mot. for TRO, Doc. 2).

(The Court notes that the TRO, to be effective, would need to be directed at either the

Ohio court system (which authorized the eviction) or the Sheriff (who will carry it out

under the state court order), neither of whom is a party to this action.)

As explained below, the Court concludes for a host of reasons—including, but

certainly not limited to, the Rooker-Feldman doctrine and the Anti-Injunction Act—

that Plaintiffs have little, if any, chance of success on the merits of their claims and

that, even if they did, a TRO directed at HSBC would provide them no relief.

Accordingly, the Court DENIES Plaintiffs’ Motion for Temporary Restraining Order

(Doc. 2).

BACKGROUND1

The case had humble beginnings in a simple foreclosure action that HSBC

initiated in 2012 in the Hamilton County Court of Common Pleas (Docket No. A

1200734). Case Summary – HSBC Bank USA NA as Trustee for the Certificate vs.

Carlean Dates, Hamilton Cnty. Clerk Cts., https://perma.cc/A9CF-JAGB [hereinafter

Foreclosure Action]. As the assignee of a mortgage note hypothecated by the

Hazelhurst property, HSBC sought to foreclose on the note when Dates defaulted,

(Doc. 3, #20–21). Dates v. HSBC Bank USA, N.A. (Dates XV), No. 1:19-cv-445, 2020

WL 7253301, at *1 (S.D. Ohio Dec. 10, 2020). This sparked a whirlwind of litigation,

including the opening of over a dozen federal dockets (listed in the footnote below)—

all of which have resulted in the courts either dismissing her actions or rejecting her

attempts to claim an ownership interest in the Hazelhurst property, largely because

these federal courts have found that the state court foreclosure proceeding

conclusively determined that HSBC was entitled to its mortgage note and (later) to

the title it obtained at the Sheriff’s sale.2

1 Although the case comes before the Court on just the Complaint and the request for a TRO,

the Court “may take judicial notice of proceedings in other courts of record,” Granader v. Pub.

Bank, 417 F.2d 75, 82 (6th Cir. 1969), as well as take “judicial notice of the public records

pertaining to the [Hazelhurst] property,” Cotton v. City of Cincinnati, No. 1:11-cv-389, 2013

WL 1438030, at *2 (S.D. Ohio Apr. 9, 2013); accord Perkins v. Lakeview Loan Serv., LLC, No.

2:22-cv-10563, 2024 WL 100168, at *2 (E.D. Mich. Jan. 9, 2024). Indeed, Plaintiffs’ counsel

offered that same observation at the hearing on the TRO motion.

2 Dates v. Buchanan (Dates XVIII), No. 1:23-cv-449 (S.D. Ohio July 18, 2023) (Cole, J.); In re

Dates (Dates XVII), No. 1:23-bk-10007 (Bankr. S.D. Ohio Jan. 5, 2023); Dates v. HSBC Bank

Dates began her federal court odyssey by filing her first bankruptcy action on

August 20, 2012, while the state court foreclosure proceeding was still pending. Dates

I (Case No. 1:12-bk-14507; Doc. 1). Although this resulted in the entry of an automatic

stay of the underlying foreclosure proceedings under 11 U.S.C. § 362, HSBC sought,

and the bankruptcy court granted, relief from that stay several months into the

proceeding. Dates XV, 2020 WL 7253301, at *1 (citing Mar. 19, 2013, Order Granting

Motion for Relief from Stay, Dates I (Case No. 1:12-bk-14507; Doc. 130)). HSBC then

successfully obtained a judgment of foreclosure in its favor in the state foreclosure

action on January 29, 2014. (Id.). In the Ohio state court system, Dates did not appeal

the foreclosure order outright; rather she sought to appeal her later denied motion

for a retrial of those state court foreclosure proceedings. But the appeals court

dismissed that appeal on September 25, 2014, for disregarding the Ohio Rules of

Appellate Procedure. Foreclosure Action, supra (Sept. 25, 2014, “Entry of Dismissal

(C 1400249)”). She never sought direct review in the Ohio Supreme Court.

USA, N.A. (Dates XVI), No. 1:19-cv-446 (S.D. Ohio June 11, 2019) (Cole, J.); Dates v. HSBC

Bank USA, N.A. (Dates XV), No. 1:19-cv-445 (S.D. Ohio June 11, 2019) (Cole, J.); Dates v.

HSBC Bank USA, N.A. (Dates XIV), No. 1:19-ap-1011 (Bankr. S.D. Ohio Feb. 19, 2019); In re

Dates (Dates XIII), No. 1:18-bk-14602 (Bankr. S.D. Ohio Dec. 21, 2018); Dates v. HSBC Bank

USA, N.A. (Dates XII), No. 1:18-ap-1070 (Bankr. S.D. Ohio Nov. 13, 2018); In re Dates (Dates

XI), No. 1:18-bk-13150 (Bankr. S.D. Ohio Aug. 21, 2018); Dates v. HSBC Bank USA, N.A.

(Dates X), No. 1:17-cv-842 (S.D. Ohio Dec. 15, 2017) (Barrett, J.); Dates v. HSBC Bank USA,

N.A. (Dates IX), No. 1:17-cv-634 (S.D. Ohio Sept. 21, 2017) (Barrett, J.); Dates v. HSBC Bank

USA, N.A. (Dates VIII), No. 1:17-cv-535 (S.D. Ohio Aug. 14, 2017) (Cole, J.); Dates v. HSBC

Bank USA, N.A. (Dates VII), No. 1:16-cv-1037 (S.D. Ohio Oct. 28, 2016) (Dlott, J.); Dates v.

HSBC Bank USA, N.A. (Dates VI), No. 1:16-ap-1052 (Bankr. S.D. Ohio Sept. 12, 2016); In re

Dates (Dates V), No. 1:16-bk-12410 (Bankr. S.D. Ohio June 28, 2016); In re Dates (Dates IV),

No. 14-8034 (BAP 6th Cir. June 5, 2014); Dates v. HSBC Bank USA, N.A. (Dates III), No.

1:13-cv-376 (S.D. Ohio June 3, 2013) (Barrett, J.); Dates v. HSBC Bank USA, N.A. (Dates II),

No. 1:13-cv-291 (S.D. Ohio May 1, 2013) (Barrett, J.); In re Dates (Dates I), No. 1:12-bk-14507

(Bankr. S.D. Ohio Aug. 20, 2012).

Undaunted by that state-court loss, Dates renewed her efforts in the

bankruptcy courts by serially filing bankruptcy actions there. Although the (new)

automatic bankruptcy stays associated with those filings temporarily stymied HSBC,

it eventually succeeded in enforcing the foreclosure judgment via sale of the

Hazelhurst property at auction. More specifically, in Dates’s third bankruptcy

proceeding, the bankruptcy court granted HSBC’s motion for relief from the stay, and

in doing so, it expressly noted that HSBC was “entitled to in rem relief due to [Dates’s]

serial filings.” Oct. 9, 2018, Order Granting Motion of HSBC for Relief from Stay with

Request for In Rem Relief at 2, Dates XI (Case No. 1:18-bk-13150; Doc. 26). Under

this in rem relief, the bankruptcy court held that beginning on October 9, 2018,

[t]he automatic stay shall not apply to the [Hazelhurst] property for a

period of two years as long as [HSBC], its successors and assigns hold

the note and mortgage … except that [Dates as] a debtor in a subsequent

case under th[e] [Bankruptcy Code] may move for relief from such order

based upon changed circumstances or for good cause shown, after notice

and a hearing.

Id. (emphasis added). In other words, the Hazelhurst property would not be subject

to the automatic stay in bankruptcy from October 9, 2018, until October 9, 2020, even

if it were claimed as property of a future bankruptcy estate, unless and until the

debtor sought an order from the bankruptcy court affirmatively staying in rem

actions over the Hazelhurst property.

True, Dates responded by launching a new bankruptcy proceeding on

December 21, 2018 (her fourth), hoping to take advantage of a new automatic stay.

Dates XIII (Case No. 1:18-bk-14602; Doc. 1). But HSBC, relying on the October 9,

2018, bankruptcy order providing no such automatic stay would occur, obtained an

Order for Sale from the state court. Foreclosure Action, supra (Dec. 27, 2018, “Order

for Sale Returned and Filed”). The Sheriff then sold the property at auction on

December 27, 2018. Id. (March 26, 2019, “Amended Judgment Entry Confirming

Sheriff’s Sale and Ordering Distribution”). The state court entered an order affirming

the sale and identifying HSBC as the buyer who was entitled to title on March 26,

2019. Id. Dates again appealed, but the appeals court sua sponte dismissed that

action for failure to prosecute. Id. (July 17, 2019, “Entry of Dismissal (C 190187)”).

And again, she declined to seek direct review from the Supreme Court of Ohio.

Meanwhile, the Hamilton County Recorder’s Office recorded HSBC’s deed to the

Hazelhurst property on April 15, 2019. Sheriff’s Deed, Hamilton Cnty. Recorder’s

Office (Apr. 15, 2019), https://perma.cc/44UW-X9YH.

Despite no longer holding title to, or any other interest in, the property, Dates

refused to leave. The state court issued multiple Orders for Possession, which Dates

ignored. Finally, on December 20, 2022, HSBC moved in state court for an order

holding Dates in contempt on account of her refusal to vacate the property when an

HSBC representative and two police officers visited the property on December 16,

2022. Foreclosure Action, supra (Dec. 20, 2022, “Plaintiff’s Motion for Contempt with

Contempt Hearing Scheduled by the Court for 1/5/23 @11:00”). After a hearing, on

January 5, 2023, the state trial court held Dates in contempt, ordered her to vacate

the premises, and authorized the Sheriff to use force in the event she did not comply.

Id. (Jan. 5, 2023, “Order Finding Defendant Carlean Dates Is in Contempt of Court”).

But, again seeking delay, Dates responded, not by appealing, but by re-traipsing her

well-trodden path to the bankruptcy court and filing a new action for bankruptcy

protection that same day. Dates XVII, 2024 WL 120028, at *1. As the two years had

elapsed on the October 2018 bankruptcy court order granting HSBC in rem relief

from the automatic stay regarding the Hazelhurst property, this new bankruptcy

filing once again resulted in an automatic stay. And based on that stay Dates

managed to remain for another year in a house she no longer owned. But that all

came to an end on January 5, 2024, when the bankruptcy court, citing the vexatious

and harassing litigation behavior that Dates had perpetrated over multiple years and

through multiple bankruptcies, dismissed the bankruptcy action as an abuse of the

judicial process and sanctioned Dates. This time it barred her from filing any further

bankruptcy actions for the next two years. Id.

Leaving out for the moment the five mandamus actions Dates filed in the Ohio

Supreme Court (which led that court also to declare her a vexatious litigator, State

ex rel. Dates v. Hamilton Cnty. Courthouse, No. 2022-1478, 203 N.E.3d 717 (Ohio Feb.

22, 2023) (table)) and the above-mentioned, recently dismissed suit in this Court in

which she sued the bankruptcy judge and trustee on frivolous claims, Dates XVIII,

No. 1:23-cv-449, 2024 U.S. Dist. LEXIS 30485 (S.D. Ohio Feb. 22, 2024), that brings

us to the current suit. Given that no other bankruptcy stays are (or will be put) in

place, final action on HSBC’s attempt to take possession of the property it has owned

for nearly five years appears imminent. On February 15, 2024, the state court, after

being notified of the dismissal of Dates’s most recent bankruptcy action and the

corresponding sanctions, amended its January 5, 2023, contempt order and

reaffirmed its decision to hold Dates in contempt for continuing to squat on HSBC’s

property. Foreclosure Action, supra (Feb. 15, 2024, “Amended Order Finding

Defendant Carlean Dates Is in Contempt of Court”). It also ordered that Dates, any

occupants, and any personalty be removed from the Hazelhurst property by February

29, 2024, and authorized the Sheriff to use force to evict her and any others violating

the contempt order should the house still be occupied after that date. Id.

Dates remains unconvinced she must go. On February 22, 2024, Dates

(represented by counsel for the first time in this saga) and Ali sued HSBC in this

Court. They raise four claims:

(1) a claim that Defendants violated the purported bankruptcy stay (not

actually entered when she filed Dates XIII) when Defendants moved

forward with the December 27, 2018, Sheriff’s sale, (Doc. 3, #17–22);

(2) a claim that Defendants violated Dodd-Frank and its implementing

regulations by enforcing an invalid mortgage allegedly issued without

consideration of Dates’s ability to repay the corresponding loan (what

statutory provisions HSBC allegedly violated remain a mystery, as the

Complaint does not identify them with any meaningful specificity),3 (id.

at #22–23);

(3) a claim that Defendants violated civil RICO apparently based on the

mere fact that HSBC initiates foreclosures across the country, (id. at

#23); and

(4) a fraud claim based on Plaintiffs’ belief that the mortgage and

promissory note were invalid and because they are convinced Dates was

reconveyed the property in 2020, (id. at #23–24).

3 Admittedly, Plaintiffs cite an entire collection of regulations in the Complaint. (Doc. 3 ¶ 42,

#21 (citing 12 C.F.R. Par 1026); Doc. 9, #52 (citing all of “Regulation Z”)). But citing an entire

part of the regulatory code is not going to cut it. By failing to “specify the provision or

provisions of the [regulations], if any, that [HSBC] allegedly violated, or any facts pertaining

to [such] a violation,” Plaintiffs have not come anywhere close to demystifying how HSBC

can be held liable for contravening Dodd-Frank. Rogers v. Horwitz, No. 1:20-cv-02568, 2023

WL 6383796, at *19 (N.D. Ohio Sept. 29, 2023).

Plaintiffs simultaneously moved for a TRO. (Doc. 2). The motion engaged in no

legal analysis and instead highlighted that eviction was “immanent [sic]” and that

Dates and her husband were entitled to temporary equitable relief based on the

allegations in the unverified Complaint. (Id. at #14). The motion suggested that the

TRO requested, which is to “stop [Plaintiffs’] immanent [sic] removal from the[]

[Hazelhurst] property,” should extend until “April 1, 2024,” which is 31 days from

now. (Id.). The Court held an informal telephone conference with the parties (at which

counsel for Plaintiffs and two attorneys for HSBC appeared) on February 26, 2024,

in which the Court authorized an expedited briefing schedule. (2/26/24 Min. Entry).

HSBC opposed the TRO by the Court’s February 28, 2024, 5:00 p.m. deadline, (Doc.

8), and Plaintiffs replied the same evening, (Doc. 9). The Court then heard argument

the next day (today), February 29, 2024, at 10:00 a.m. (2/29/24 Min. Entry).

The matter is ripe for the Court’s review.

LEGAL STANDARD

“A temporary restraining order is an extraordinary remedy that should only

be granted if the movant can clearly show the need for one.” Kendall Holdings, Ltd.

v. Eden Cryogenics LLC, 630 F. Supp. 2d 853, 860 (S.D. Ohio 2008). Ultimately, “the

purpose of a TRO under Rule 65 is to preserve the status quo so that a reasoned

resolution of a dispute may be had.” Procter & Gamble Co. v. Bankers Tr. Co., 78 F.3d

219, 226 (6th Cir. 1996). Plaintiffs “bear[] the burden of establishing entitlement to

a temporary restraining order.” Mesa Indus., Inc. v. Charter Indus. Supply, Inc., No.

1:22-cv-160, 2022 WL 1044720, at *4 (S.D. Ohio Apr. 7, 2022). “To satisfy this burden,

[Plaintiffs] must establish [their] case by clear and convincing evidence.” Id. And that

in turn means that Plaintiffs “may not merely rely on unsupported allegations, but

rather must come forward with more than ‘scant evidence’ to substantiate their

allegations.” Patel v. AR Grp. Tenn., LLC, No. 3:20-cv-52, 2020 WL 5849346, at *4

(M.D. Tenn. Oct. 1, 2020) (collecting cases).

Whether a movant is entitled to this extraordinary relief is governed by the

same four factors that apply to preliminary injunctions. See Moore v. Kempthorne,

464 F. Supp. 2d 519, 525 (E.D. Va. 2006). Those factors are: (1) whether the movant

has a substantial likelihood or probability of success on the merits; (2) whether the

movant will suffer irreparable injury if the relief is not granted; (3) whether the

injunctive relief would unjustifiably harm a third party; and (4) whether the public

interest would be served by issuing the injunctive relief. Frisch’s Rest., Inc. v.

Shoney’s Inc., 759 F.2d 1261, 1263 (6th Cir. 1985). The failure to meet the likelihood

of success prong of the analysis is not dispositive. Id. at 1270. But if it is lacking,

preliminary equitable relief is permissible only if there are at least “serious questions

going to the merits and irreparable harm which decidedly outweighs any potential

harm to the defendant if a[] [TRO] is issued.” Id. (quoting Friendship Materials Inc.

v. Mich. Brick, Inc., 947 F.2d 100, 105 (6th Cir. 1982)).

LAW AND ANALYSIS

The issues with the motion and the complaint are numerous and, given the

time constraints imposed by the relief Plaintiffs seek, the Opinion and Order cannot

exhaustively address all of them. Instead, the Court endeavors to identify below the

most salient reasons Plaintiffs lack any meaningful likelihood of success on the claims

they raise and therefore do not merit temporary injunctive relief.

Before turning to the merits, though, the Court starts, as it must, with subject-

matter jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–95 (1998).

Multiple problems exist on that front, which the Court may address in the order it

pleases. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007).

The first, and biggest, problem is that the Court lacks Article III jurisdiction

to entertain the injunctive relief requested here because Plaintiffs lack standing to

pursue the equitable relief they demand. TransUnion LLC v. Ramirez, 594 U.S. 413,

431 (2021) (explaining that “standing is not dispensed in gross; rather, plaintiffs must

demonstrate standing for each claim that they press and for each form of relief that

they seek”). As explained above, the order that requires Dates and any other

occupants of the Hazelhurst property to vacate is a Hamilton County Court of

Common Pleas contempt order directing the Hamilton County Sheriff’s Office to take

forcible action with respect to any squatters who remain at the Hazelhurst property

tomorrow. Foreclosure Action, supra (Feb. 15, 2024, “Amended Order Finding

Defendant Carlean Dates Is in Contempt of Court”). That means the impending harm

of which Plaintiffs complain (removal from the property) results from the state court’s

entry of the contempt order coupled with the Sheriff’s anticipated actions under it.

Neither of these are actions that HSBC has undertaken or will undertake. That is,

HSBC is not authorized to evict Plaintiffs, and the Sheriff is doing so at the state

court’s command, not HSBC’s, so enjoining HSBC accomplishes nothing. Rather,

providing Plaintiffs the relief they seek would require an order enjoining the Sheriff

from executing the state court contempt order. But neither the Sheriff’s Office, nor

any individual law enforcement officer likely to execute the contempt order, nor the

Hamilton County Court of Common Pleas is a party to this action.

That poses an insurmountable standing problem on redressability grounds. As

the Eleventh Circuit explained, “[i]f a plaintiff sues the wrong defendant, an order

enjoining the correct official who has not been joined as a defendant cannot suddenly

make the plaintiff’s injury redressable. [A] district court [i]s without jurisdiction to

enjoin the lone defendant in this action, much less the nonparty [Sheriff’s Office].”

Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1255 (11th Cir. 2020); cf. Terves LLC

v. Yueyang Aerospace New Materials Co., No. 1:19-cv-1611, 2022 WL 2834743, at*3

(N.D. Ohio July 20, 2022) (“An injunction ordinarily cannot be imposed on a non-

party that has not had the opportunity to contest its liability.” (cleaned up)).

Accordingly, the Court lacks subject-matter jurisdiction to entertain the equitable

relief Plaintiffs’ motion demands. TransUnion, 594 U.S. at 423. So the TRO motion

fails out of the gate.

But that is not the sole jurisdictional problem; the Rooker-Feldman doctrine

also comes into play. The doctrine “prevents the lower federal courts from exercising

jurisdiction over cases brought by state-court losers challenging state-court

judgments rendered before the district court proceedings commenced.” Abbot v.

Michigan, 474 F.3d 324, 328 (6th Cir. 2007) (cleaned up). Plaintiffs’ theory, as raised

here in multiple counts of the Complaint (the bankruptcy stay count, the Dodd-Frank

count, and the fraud count), is that HSBC’s attempt to obtain possession of the

Hazelhurst property is improper because HSBC never validly obtained title during

the state court foreclosure proceedings. (See Doc. 3, #17–24). But granting relief to

Plaintiffs on such grounds would necessarily require the Court to hold “that the state

court was wrong, [which] is difficult to conceive [of] … as, in substance, anything

other than [a request for this Court to entertain] a prohibited appeal of the state-

court judgment.” Tropf v. Fid. Nat’l Title Ins. Co., 289 F.3d 929, 937 (6th Cir. 2002)

(citation omitted). Hence, it is of no import that Plaintiffs do not expressly attempt to

appeal or to invoke the state court foreclosure judgment. (Reply, Doc. 9, #49–50).

Form does not matter, here—just substance. And in substance, Plaintiffs’ “federal

claims are [] predicated on their conviction that the state courts were wrong [about

HSBC’s entitlement to take possession of its home]—the very definition of [claims]

‘inextricably intertwined’” with the merits of the state court judgment. Tropf, 289

F.3d at 938. After all, that is the only means by which they can deign to ask this Court

to “enjoin[] [HSBC’s taking] … possession of [its] home under the federal statutes

cited.” (Doc. 9, #49).

Rooker-Feldman bars such an implicit appeal of the state court judgment. The

short of it is that the Court lacks the power to operate as an appellate court that

reviews state court judgments. So if Plaintiffs believe that the state court erred in

permitting HSBC to obtain title to the Hazelhurst property, they must pursue that

belief in the state court—not here. Id. at 937–38 (holding that a challenge to the

validity of a warranty deed alleged to be fraudulent was barred by Rooker-Feldman

given the deed’s validity was upheld in state court proceedings).

Beyond that, the Anti-Injunction Act also bars the requested TRO. Under the

Act, “[a] court of the United States may not grant an injunction to stay proceedings

in a State court except as expressly authorized by Act of Congress, or where necessary

in aid of its jurisdiction, or to protect or [to] effectuate its judgments.” 28 U.S.C.

§ 2283. On first blush, it may seem odd to describe a Sheriff’s acting pursuant to a

state court’s contempt order as a “proceedings in a State court.” But the Supreme

Court has interpreted the term quite broadly, such that even the Sheriff’s actions

here are covered by the Anti-Injunction Act:

That term is comprehensive. It includes all steps taken or which may be

taken in the state court or by its officers from the institution to the close

of the final process. It applies to appellate as well as to original

proceedings; and is independent of the doctrine of res judicata. It applies

alike to action by the court and by its ministerial officers; applies not

only to an execution issued on a judgment, but to any proceeding

supplemental or ancillary taken with a view to making the suit or

judgment effective. The prohibition is applicable whether such

supplementary or ancillary proceeding is taken in the court which

rendered the judgment or in some other.

Hill v. Martin, 296 U.S. 393, 403 (1935). Here, the Sheriff, armed with the contempt

order to evict Plaintiffs from their home, is effectuating the state court’s foreclosure

judgment. Cf. Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 287

(1970) (noting “[i]t is settled that the prohibition of § 2283 cannot be evaded

by … prohibiting utilization of the results of a completed state proceeding”). As that

ancillary “execution issued on a judgment … taken with a view to making

the … judgment effective” falls within the capacious definition of a ‘proceedings in a

State court’ set forth in Hill, the Anti-Injunction Act bars the TRO, unless one of the

three enumerated exceptions applies. 296 U.S. at 403.

None does. As HSBC rightly points out, (Opp’n, Doc. 8, #38–39), neither the

motion nor the Complaint identifies legal authority permitting this Court’s enjoining

state court proceedings—indeed, the motion (other than generally to refer back to the

Complaint) cites no legal authority at all, (see Doc. 2). True, Plaintiffs belatedly claim

that, because RICO claims may generally be remedied with injunctive relief, that

means Congress expressly authorized federal courts to issue injunctions against state

courts under that statute. (Doc. 9, #50–51). But two problems with that. First, the

argument is too late to the party and therefore need not be considered. SAT Tech.,

Inc. v. CECO Env’t Corp., No. 1:18-cv-907, 2023 WL 6119934, at *3 n.7 (S.D. Ohio

Sept. 19, 2023). Second, the Sixth Circuit has previously suggested that this

argument does not work. It did so by noting in a civil RICO action challenging the

validity of certain conveyances of property that “there is no statute that particularly

authorizes the federal courts to issue injunctions in the circumstances of this case.”

Tropf, 289 F.3d at 942 n.21. If the civil RICO statute did not meet the Anti-Injunction

Act exception there, little reason exists to believe it would here. And this makes sense.

Plaintiffs merely point to the availability of injunctive relief generally under RICO.

But that does not answer the more specific and relevant question here, which is

whether the statute specifically authorizes injunctions that are directed against state

court proceedings. The latter need not and does not follow from the former. Vendo Co.

v. Lektro-Vend Corp., 433 U.S. 623, 636 (1977) (noting that “the importance of the

federal policy to be protected by the injunction is not the focus of the inquiry” (citation

omitted)). And as the standard for a statute to authorize such injunctions expressly

requires substantial evidence of congressional authorization by reference to the

statute’s text and historical enactment, id. at 631–34 (highlighting the unique

attributes of 42 U.S.C. § 1983 that make it a prime candidate for the “expressly

authorized” exception that is not evident from the lack of textual authorization and

historical support for the same authorization in the Clayton Act), the authority to

grant equitable relief alone cannot be the basis for the application of this exception.

Id. at 641 (concluding that a statute that “does not by its very essence contemplate or

envision any necessary interaction with state judicial proceedings, is clearly not [] an

Act” that fits within the “expressly authorized” exception to the Anti-Injunction Act).

Moving to the second exception, there is no prior federal court judgment to

protect or to effectuate. Huguley v. Gen. Motors Corp., 999 F.2d 142, 145 (6th Cir.

1999) (noting the “protect or effectuate” exception applies to “prior federal court

judgments”). To the contrary, the myriad federal cases identified above, see supra

note 2, all ended unfavorably to Dates. And finally, the Court need not issue an

injunction to aid this Court’s jurisdiction as this is an in personam action against

HSBC, not an in rem action regarding the Hazelhurst property. Hanover Am. Ins. Co.

v. Tattooed Millionaire Ent., LLC, 38 F.4th 501, 505–06 (6th Cir. 2022); cf. GP Vincent

II v. Est. of Edgar Beard, 68 F.4th 508, 519, 523 (9th Cir. 2023) (Bea, J., concurring

in the judgment) (explaining the in rem versus in personam distinction).

Moreover, even if the Court somehow could clear these threshold hurdles,

Plaintiffs fare no better on the merits of their specific claims. Perhaps most notably,

res judicata, now more commonly called claim preclusion, bars their claims. Claim

preclusion holds that a “final judgment on the merits of an action precludes the

parties or their privies from relitigating issues that were or could have been raised in

that action.” Fed. Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). As noted above,

the state court entered a judgment in the foreclosure action in 2014 finding that

HSBC held a valid mortgage and an order in 2019 affirming the property’s sale to

HSBC as the current titleholder. Plaintiffs’ claims attempting to (re)litigate the

validity of the mortgage, (e.g., Doc. 9, #53–54), could have easily been raised in that

proceeding—yet, Dates instead has attempted to do so several times over in this

Court and the bankruptcy court to no avail. As the undersigned noted in an appeal

from one of the previous bankruptcy filings,

[t]he validity of the underlying lien at issue here (which resulted from a

mortgage) was determined by an Ohio state court. … [T]hat earlier

foreclosure judgment precludes Dates’ later efforts to relitigate that

same issue in her bankruptcy proceedings. The … resolution of that

issue in connection with her fourth bankruptcy action appears to this

Court to be just as correct as when the bankruptcy court reached that

same result, on that same issue, in her second bankruptcy action.

Dates XV, 2020 WL 7253301, at *7. And the passage of another three years does not

(and cannot) change that result. So there is no basis for Dates now to re-raise claims

that she could have made in resisting the state court judgment in the first instance.

Nor is there any basis for her to re-raise claims that she could have asserted in

previous federal actions.4

Given the many problems the Court already has identified, the Court declines

to tread much further. That said, the Court would be remiss if it did not note the

clearly evident problems with the conclusory allegations in the Dodd-Frank and

RICO counts of the Complaint. (Doc. 3, #22–23). These claims appear to consist only

of “unadorned, the-defendant-unlawfully-harmed-me accusation[s].” See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation omitted); see also supra note 3. Whether or

not as such they could survive a motion to dismiss is a question for another day. But

for present purposes, suffice to say that they do not provide the Court a strong basis—

4 Just as Plaintiffs’ challenge to who properly holds title to the Hazelhurst property is barred

by the state court foreclosure judgment under the doctrine of res judicata, so too are some of

Dates’s other claims connected to the property by the judgments entered in the several cases

from her extensive federal court litigation history.

As the bankruptcy court (correctly) held in Dates’s most recent bankruptcy proceeding, HSBC

still holds title even though it executed an April 17, 2020, Release of Mortgage. Dates XVII,

2024 WL 120028, at *7. “The Release of Mortgage released and reconveyed HSBC’s mortgage

interest ‘to the persons legally entitled thereto.’ At the time of the release, that ‘person’ was

HSBC, holding legal title to the Hazelhurst Property pursuant to the Sheriff's Deed” recorded

a year before. Id. (cleaned up). Dates cannot be heard to suggest she obtained title on account

of HSBC’s release of the mortgage to itself in order to create a clean title to the Hazelhurst

property subject to no encumbrances. The Hazelhurst property is HSBC’s, as it has been for

nearly five years.

Similarly, despite Plaintiffs’ continued insistence to the contrary, (Doc. 9, #51–52), no

violation of the bankruptcy court stay could have occurred when HSBC initiated a Sheriff’s

sale of the Hazelhurst property in late 2018. The bankruptcy court rejected this spurious

argument that Plaintiffs now rehash and offered the following observation: no automatic stay

barred the sale as “HSBC had previously obtained in rem relief from the automatic stay

pursuant to 11 U.S.C. § 362(d)(4) in Case Number 18-13150 by order entered on October 9,

2018 and the relief granted was valid for a period of two years [Case Number 18-13150,

Docket Number 26].” Dates XVII, 2024 WL 120028, at *7 n.7.

Simply, the repackaged Complaint counsel filed here fares no better than any of the other

dozen-and-half uncounseled suits raising largely the same specious challenges.

and certainly not a clear and convincing basis—to conclude that Plaintiffs are likely

to prevail on their action.

And beyond that there is the question of evidence generally. As noted above, a

plaintiff seeking a TRO must provide an evidentiary basis supporting that request.

See Patel, 2020 WL 5849346, at *4. Often, that comes in the form of a verified

complaint, which amounts to an affidavit, as the plaintiff signs it under penalty of

perjury. But the Complaint here is not verified, and thus is not evidence, as Plaintiffs’

counsel conceded during argument. Nor have Plaintiffs attached any evidence to their

motion, as counsel also conceded. That in turn means, as counsel also acknowledged,

that the only evidentiary record before the Court is the previous litigation history, of

which the Court can take judicial notice. But for all the reasons discussed above, the

litigation history does not support (to put it mildly) Plaintiffs’ request for a TRO. So

even putting aside all of the legal problems noted above, Plaintiffs have abjectly failed

to carry the evidentiary burden required to support their requested relief.

In sum, on a host of fronts, both substantive and procedural, the Court sees an

array of deficiencies with the claims, the Complaint, and the TRO motion. The

jurisdictional, pleading, res judicata, and merits problems (merits that have been

litigated and relitigated in several forums), all point in one direction: Plaintiffs have

not established any meaningful likelihood of success on their claims. And because the

Complaint raises no serious questions going to the merits of the claims, the Court

need not address any of the other preliminary injunction factors, as the apparently

spurious nature of Plaintiffs’ claims in and of itself dooms any request for relief.

Frisch’s, 759 F.2d at 1270.

But the Court closes with a further observation on the balance of harms. Here

it is granting the TRO that would cause harm, not denying it. HSBC has owned the

Hazelhurst property for five years but has been denied possession for that entire time.

The protection of property rights, like HSBC’s, is an essential component of our

constitutional legal structure. See U.S. Const. amends. V, XIV. Any further delay

occasioned by this Court would simply add to HSBC’s costs and the harm it has

suffered to date.

And even that does not tell the whole story of the harm at issue here. Mortgage

lenders provide money to support home purchases at favorable interest rates

precisely because the lenders have a way to minimize their losses in the event of

default. In the parlance of the banking industry, mortgage loans are said to be

“secured,” which simply means that the lender has access to a straightforward

mechanism for repossessing the collateral (the home) in a relatively fast and efficient

manner if the borrower stops paying. Because the availability of such relief reduces

the risk accompanying such loans, that reduced risk is passed on to borrowers in the

form of lower rates generally. But if parties like the Plaintiffs here are successful in

turning the foreclosure process into a multi-year, multi-jurisdictional slog, then the

value to the lender of the repossession right goes down, and the risk goes up. In turn,

that means that interest rates for mortgage loans will rise across the board, as such

loans will be less “secure.” And that means home purchasers will pay more for their

mortgages.

Plaintiffs’ only response on the harm front is to assert that: “Defendant is an

international bank. How serious an injury could the ordering of a temporary stay be”?

(Doc. 9, #53). At one level, Plaintiffs may be correct that HSBC, with its resources,

could “afford” to let Dates remain in the house in some sense of that term. But

remember that the “temporary stay” sought here is merely the latest installment in

a series of events that have resulted in a roughly five-year delay in Plaintiffs’ leaving

the house after the sale was complete. And nothing before the Court suggests any

reason that Plaintiffs should be subject to special property rules. So the question is

not whether HSBC could absorb such a loss as to Dates, but rather whether it could

absorb that type of loss as to all mortgage borrowers across the board. But that just

leads directly to the point immediately above—when risks change, so do interest

rates, and that outcome harms homeowners generally.

Does that mean that borrowers have no rights when lenders seek eviction? Of

course not. Borrowers have due process rights to present any defenses they have to

foreclosure or eviction in the foreclosure action itself, or even perhaps to file for

bankruptcy protection, if they qualify, to stop those proceedings in their tracks. But

here Dates has received due process, indeed oodles of process, with multiple suits in

multiple courts, all largely re-plowing the same ground. It is just that she lost.

And that brings the Court to its final observation about harm, which is the

harm that repetitive filings cause to the judicial system itself. A fundamental tenet

of the judicial process is that parties present all their arguments relating to a given

matter to the first forum that has jurisdiction over a matter. And if a party disagrees

with the resolution in that forum, the proper avenue for registering that

disagreement is by way of an appeal. Parties have every right to disagree with a

court’s conclusion if they wish. Indeed, roughly fifty percent of the parties in any

action tend to disagree with the court’s resolution. And courts are by no means

infallible. But parties cannot rely on their disagreement with a court’s decision as a

basis for simply ignoring court orders. Nor, except in very limited circumstances not

present here, can they just proceed to file a new case in a new court system in hopes

of obtaining a different answer than the one they already received.

CONCLUSION

Over the past ten years, much ink has been spilled, and many trees felled, on

a straightforward foreclosure proceeding and the long string of objections to that

proceeding that Dates has repeatedly raised in multiple forums to no avail. That

Dates now has counsel pressing those claims—or seeking to add new ones in support

of Dates’ previous efforts to prevent the state-court ordered eviction—does not change

the outcome. Because the lack of any prospect for success on the merits of Plaintiffs’

claims dooms the request for a TRO, the Court DENIES Plaintiffs’ Motion for

Temporary Restraining Order (Doc. 2).

SO ORDERED.

\

February 29, 2024

DATE DOUGLAS R. COLE \

UNITED STATES DISTRICT JUDGE

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