Haney v. Blumenauer et al
Filing
14
OPINION AND ORDER - Plaintiff's Motion for a Preliminary Injunction is DENIED. Plaintiff has failed to state a claim in her Amended Complaint and this action is dismissed with prejudice. Signed on 9/15/2011 by Judge Garr M. King. (pc)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
Civil Case No. 3:11-989-KI
AZONIA HANEY,
Plaintiff,
v.
EDWARD P. O’KEEFE, acting in his
capacity as a licensed attorney for the
Bank of America, et. al.,
Defendants.
Azonia Haney
8707 SE 347th Ave.
Boring, OR 97009
Pro Se Plaintiff
Page 1 - OPINION AND ORDER DISMISSING CASE
OPINION AND ORDER
DISMISSING CASE
KING, Judge:
Plaintiff Azonia Haney previously filed a Motion for a Temporary Restraining Order
seeking to stop a trustee’s sale of her property scheduled for September 2, 2011. I granted
plaintiff’s motion and directed that the temporary restraining order would remain in effect until at
least September 15 at 8:30 AM, at which time I had set a preliminary injunction hearing.
Having now held a preliminary injunction hearing, and having heard from counsel for
Bank of America and ReconTrust that the bank has cancelled the sale and will re-institute a new
non-judicial foreclosure proceeding, complying with the required statutory procedures, I find no
justification for entering a preliminary injunction. In addition, after reviewing plaintiff’s
Amended Complaint, I conclude that she has failed to state a claim for relief and, having already
given her the opportunity to correct the deficiencies in her Complaint, I dismiss this action with
prejudice.
BACKGROUND
I previously dismissed plaintiff’s Complaint for failure to state a claim. I permitted
plaintiff to file an Amended Complaint by September 23, 2011 to correct the deficiencies in her
initial Complaint.
On August 31, 2011, plaintiff filed a Motion for a Temporary Restraining Order and an
Affidavit in support of her Motion. In her motion she sought an order restraining various
individuals and entities from “selling, assigning, transferring, or conveying” her real property.
She complained that individuals at BAC Home Loans Servicing, ReconTrust, Bank of America,
Countrywide Home Loans, Inc., Mortgage Electronic Registration Systems, Inc., and Freddie
Mac were wrongfully foreclosing her property, among other claims.
Page 2 - OPINION AND ORDER DISMISSING CASE
On September 1, 2011, plaintiff appeared at a hearing on her motion. At the hearing she
described confusion with my order, indicating she believed she could file her Amended
Complaint by September 23, 2011, and move for a temporary restraining order in the meantime.
Plaintiff additionally reported, and presented evidence, showing that she faxed her motion
and affidavit to the parties identified in her Motion, including ReconTrust.
Finally, plaintiff informed me that the Notice of Default previously recorded against her
property in 2010 was rescinded by ReconTrust on January 18, 2011. She presented evidence
demonstrating that as of August 26, 2011, no new Notice of Default had been recorded in
Clackamas County. She reported she received a Notice of Sale scheduling the sale for September
2, 2011.
I issued an Opinion and Order on September 1 accepting her motion as a statement of her
claim for purposes of the proceeding. I directed plaintiff to file and serve her Amended
Complaint prior to the preliminary injunction hearing scheduled for September 15. Until then, I
accepted that the parties would be those identified in her motion, and not those identified in her
initial Complaint. I concluded that plaintiff was entitled to a temporary restraining order as she
presented evidence that no Notice of Default had been recorded in Clackamas County, in
violation of ORS 86.735, and that she would suffer irreparable harm if no restraining order were
issued.
On September 13, plaintiff filed a “Complaint” against numerous defendants, including
individuals representing Bank of America and ReconTrust, but also naming Timothy Geithner,
Amanda Fritz, General Motors Acceptance Corporation, Goldman Sachs & Co., International
Council for Local Environmental Issues, the Internal Revenue Service, the International
Page 3 - OPINION AND ORDER DISMISSING CASE
Monetary Fund, Henry Kissinger, John Kitzhaber, Oregon Public Employees’ Retirement
System, and others. She references the Racketeer Influenced and Corrupt Organizations Act
(“RICO”). She asks the Court to proceed as a “territorial administrative court,” she suggests her
due process rights were suspended by the Patriot Act “by and through the system of electronic
virtual monies,” she attempts to incorporate by reference the complaints filed by other
individuals, she reports that the government of Norway has initiated an investigation of
Countrywide, she incorporates a “legal statement” purportedly from KPMG International, and
she seeks special damages, general damages, treble damages, and punitive damages. Am.
Compl. 3, 4.
Plaintiff faxed a letter to the Court on September 14 reporting that Clackamas County
records were not up-to-date; the County had not yet scanned documents from July. She indicated
that she was asking the Medford Division to review her case and requested that the telephone
conference be postponed.
On September 15, the Court held the preliminary injunction hearing by telephone.
Plaintiff informed the Court that she did not wish to speak and she hung up. She neglected to
provide the Court with her most recent phone number and the Court had no ability to contact her.
A representative for Bank of America and ReconTrust appeared by phone.
The representative informed the Court that the Court had correctly described the record in
its Temporary Restraining Order, that the Trustee had failed to record a Notice of Default, and
that the bank would be cancelling the sale. It also indicated that it would be re-instituting new
non-judicial foreclosure proceedings, but not before February of 2012.
Page 4 - OPINION AND ORDER DISMISSING CASE
LEGAL STANDARDS
The party moving for a preliminary injunction must show “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.
Natural Resources Def. Council, Inc., 555 U.S. 7, 20 (2008).
In addition, Federal Rule of Civil Procedure 8(a) states:
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction,
unless the court already has jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.
In addition, “Each allegation must be simple, concise, and direct.” Fed. R.
Civ. P. 8(d)(1).
A motion to dismiss under Rule 12(b)(6) will be granted if plaintiff fails to allege the
“grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quotation omitted). This means that, although a plaintiff need not allege detailed facts,
the pleading must provide “enough facts to state a claim to relief that is plausible on its face.” Id.
at 570. A claim rises above the speculative level “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009). “In sum, for a complaint
to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences
Page 5 - OPINION AND ORDER DISMISSING CASE
from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss
v. United States Secret Serv., 572 F.3d 962, 929 (9th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949));
see also Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may
dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6). Such a dismissal may be made
without notice where the claimant cannot possibly win relief.” (internal citations omitted)).
DISCUSSION
As an initial matter, the Court declined to postpone the telephone conference because the
temporary restraining order was scheduled to expire by operation of rule today. Plaintiff was
entitled to a preliminary injunction hearing to determine whether she had the right to a continued
injunction stopping the non-judicial foreclosure sale of her house. Additionally, the Local Rules
require that cases arising within Clackamas County “must be filed in Portland.” LR 3-2(a)(1)
and 3-3(a). Since this case arose in Clackamas County, where plaintiff’s property is located, the
Court saw no reason to delay the preliminary injunction hearing pending any review in Medford.
At the preliminary injunction hearing, the representative from Bank of America and
ReconTrust reported to the Court that the bank will be cancelling the sale, now scheduled for
October 3, 2011. As a result, plaintiff’s request for a preliminary injunction is moot as she can
no longer demonstrate irreparable harm. The representative reported that the bank would reinstitute a new non-judicial foreclosure proceeding, but not before February of 2012. The
temporary restraining order expires today and the Court denies plaintiff’s motion for the entry of
a preliminary injunction.
Finally, plaintiff’s Amended Complaint referencing RICO does not meet any of the
requirements of Federal Rule of Civil Procedure 8. As was the problem with her initial
Page 6 - OPINION AND ORDER DISMISSING CASE
Complaint, I am unable to understand what trouble plaintiff wants the court to address and how
the defendants caused that trouble. Plaintiff does not describe the foreclosure proceedings, does
not seek relief related to the foreclosure proceedings, and does not identify the “racketeering
activity” that forms the basis of any RICO claim. See 18 U.S.C. §§ 1962(c), 1961.
Since plaintiff failed to comply with my explicit direction to follow the rules and state
concisely how she has been damaged and how each defendant caused the damage, I find she has
failed to state a claim. Additionally, I find it impossible for plaintiff to cure the failures in her
Amended Complaint and I dismiss this case with prejudice. McGuckin v. Smith, 974 F.2d 1050,
1055 (9th Cir. 1992).
CONCLUSION
For the foregoing reasons, plaintiff’s motion for a preliminary injunction is denied.
Plaintiff has failed to state a claim in her Amended Complaint and this action is dismissed with
prejudice.
IT IS SO ORDERED.
DATED this
15th
day of September, 2011.
/s/ Garr M. King
Garr M. King
United States District Judge
Page 7 - OPINION AND ORDER DISMISSING CASE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?