Shonk et al v. US Bank NA, as Legal Title Trustee for Truman 2013 SC4 Title Trust et al

Filing 23

ORDER: Plaintiff's Motion for a Temporary Restraining Order 18 is DENIED. See formal ORDER. Signed on 3/22/2016 by Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
CLEATUS W. SHONK; RAE ANN
SHONK,
1:15-cv-2428-CL
Plaintiffs,

v.

ORDER

US BANK, NA, as Legal Title
Trustee for Truman 2013 SC4
Title Trust; NORTHWEST
TRUSTEE SERVICES, INC.
Defendants.

AIKEN, District Judge:
This matter comes before the Court on Plaintiffs' Motion for
a Temporary Restraining Order (TRO)

(#18).

Plaintiffs seek to

enjoin the non-judicial foreclosure sale currently scheduled for
March 23, 2016.

Plaintiffs' motion is DENIED.

The standard for a temporary restraining order (TRO) is
essentially identical to the standard for a preliminary
injunction.

See Stuhlbarg Intern. Sales Co., Inc. v. John D.

Brush and Co., Inc., 240 F.3d 832, 839, n. 7 (9th Cir. 2001); see
also Sam v. Deutsche Bank Nat'l Trust Co., 3:13-cv-1521-MO, 2013
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WL 6817888, at *1 (D. Or. Dec. 23, 2013).
"A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction
is in the public interest."

Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008).
Further, a TRO may only be issued without notice to the
adverse party if the moving party shows "specific facts in an
affidavit or a verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition[,]" and "the
movant's attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required."

Fed. R.

Ci v. P. 65 (b) ( 1) .
As a final matter, the court may issue a temporary
restraining order "only if the movant gives security in an amount
that the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined or
restrained."

Fed. R. Civ. P. 65(c).

In this case,

Plaintiffs seek to enjoin the pending sale of

their property by non-judicial foreclosure.

Plaintiffs contend

that Defendant US Bank is not entitled to proceed with nonjudicial foreclosure because there are unrecorded transfers of

2 - ORDER

Plaintiffs' loan in violation of ORS 86.752 1 •
ORS 86.752 provides that in order to proceed with a nonjudicial foreclosure, the foreclosing entity must record "any
assignments of the trust deed by the trustee or the beneficiary
and any appointment of a successor trustee" in "the mortgage
records in the counties in which the property described in the
deed is situated."

ORS 86.752(1).

In Brandrup v. ReconTrust Co.,

the Oregon Supreme Court held that ORS 86.752 does not require
recordation of assignments of the trust deed by operation of law
and that "for the purposes of [former) ORS 86.735(1),

'assignments

of the trust deed' means written assignments that are executed an
acknowledged with [deed-like) formalities."
ReconTrust Co., 353 Or. 668, 699 (2013).

Brandrup v.

Plaintiffs allege that

they believe the unrecorded transfers were accompanied by some
sort of documentation, but there is nothing in this record to
indicate that such a writing exists or that it reaches the level
of formality discussed by the Oregon Supreme Court in Brandrup.
Plaintiffs further allege that they applied for a loan
modification and that the loan's then-servicer improperly rejected
their modified payments.

I note, however, that the Complaint only

indicates that Plaintiffs "applied" for a loan modification, not
that Defendants (or Defendants' predecessors in interest) actually
entered into such a modification.

Comp. at 5.

Similarly, the

Affidavit of Plaintiff Cleatus Shonk indicates that Plaintiffs'

1

Plaintiffs' complaint and motion cite to ORS 86.735, which
was renumbered as ORS 86.752 in 2013.
For the sake of clarity, I
refer to the statute by its current designation.
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first application for a HAMP modification, made in 2010, was
rejected and that Plaintiffs again applied for a modification in
August 2011 shortly before they were alleged to have defaulted.
Billin Aff. Ex. 2 at 3.

There is nothing in the record to support

the contention that the bank actually accepted Plaintiffs'
application for a modification and Plaintiffs affirm that they
stopped making payments entirely in November 2011.
On this record,

Id.

I cannot conclude that Plaintiffs have made a

sufficient showing of likely success on the merits of their claim.
On the issue of irreparable harm in the absence of injunctive
relief,

Plaintiffs' own motion appears to concede that the sale

will not prevent them from pursuing their claims against
Defendants.

On the issue of the balance of equities, Plaintiffs

assert that Defendants will suffer minimal harm from the granting
of the TRO.

I note, however, that the sale has been scheduled for

several months and that Plaintiffs filed this action in December
2015, yet Plaintiffs waited until less than one week before the
scheduled sale date to pursue injunctive relief.
not weigh in Plaintiffs'

favor.

Similarly,

This delay does

I do not find that the

public interest weighs in favor of granting a temporary
restraining order.
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4 - ORDER

Conclusion
Plaintiff's Motion for a Temporary Restraining Order (#18) is
DENIED.
IT IS SO ORDERED.
DATED this

:J.j)-..

day of March, 2016.

ANN AIKEN
DISTRICT JUDGE

5 - ORDER