Gosha et al v. Bank of New York Mellon Corporation et al

Filing 175

Opinion and Order. The Court DENIES Defendants' Motion (# 165 ) to Disburse Funds and GRANTS Plaintiffs Motion (# 164 ) for Order to Withdraw and Disburse Funds. The Court will enter a separate Order of Disbursement that complies with Local Rule 67-3 for disbursement of funds to Plaintiffs by the Clerk of Court.IT IS SO ORDERED. Signed on 11/7/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GARY C. GOSHA and KIT M.
GOSHA,
Plaintiffs,

3:16-cv-00073-BR
OPINION AND ORDER

v.
THE BANK OF NEW YORK MELLON
CORPORATION fka THE BANK OF
NEW YORK, AS TRUSTEE (CWALT
2005-72), Delaware
Corporation; BANK OF AMERICA
N.A., a Delaware Corporation;
BAYVIEW LOAN SERVICING LLC, a
Florida Corporation; and CLEAR
RECON CORP, a California
Corporation,
Defendants.
BROWN, Senior Judge.
This matter comes before the Court on Plaintiffs’ Motion
(#164) for Order to Withdraw and Disburse Funds and the Motion
(#165) to Disburse Funds filed by Defendant Bank of New York
Mellon Corporation (BONY).
For the reasons that follow, the Court GRANTS Plaintiffs’
Motion and DENIES Defendant’s Motion.
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- OPINION AND ORDER

BACKGROUND
On January 15, 2016, Plaintiffs appearing pro se brought
this action to prevent foreclosure of the mortgage on their
property.

The mortgage was held by BONY and serviced at various

times by Defendants Bayview Loan Servicing LLC and Clear Recon
Corp.

Plaintiffs alleged several claims against all Defendants

for violation of various consumer-protection laws.

Plaintiffs

also sought a temporary restraining order (TRO) to prevent the
foreclosure sale.
On January 25, 2016, the day before the foreclosure sale on
Plaintiffs’ home was scheduled to occur, the Court granted
Plaintiffs’ Motion for a TRO and enjoined the foreclosure during
the pendency of this action.

Order (#18).

The Court also

directed Plaintiffs to deposit funds monthly with the Clerk of
Court as bond for the TRO.
Plaintiffs made various payments to the Clerk of Court
during this litigation pursuant to the Court’s Order.
#23, #47, #54, #90, #91, #109, #110, #129, and #132.

See Docket
The funds

held by the Clerk of Court total $5,300.
On December 13, 2016, the Court granted Defendants’ Motions
(#75, #79) to Dismiss Plaintiffs’ Complaint (Order #133) and
entered Judgment (#134) of Dismissal with prejudice against
Plaintiffs.
On March 20, 2017, Plaintiffs filed with the Ninth Circuit a
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Notice of Appeal (#147) of this Court’s judgment.
On May 25, 2017, BONY cancelled its nonjudicial foreclosure
of Plaintiffs’ mortgage.
On June 22, 2018, the Ninth Circuit issued a Mandate (#157)
affirming this Court’s dismissal of Plaintiffs’ case.

STANDARDS
Federal Rule of Civil Procedure 65(c) provides:

“The court

may issue a preliminary injunction or 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.”
There is a “rebuttable presumption” that a wrongfully
enjoined party is entitled to have the bond executed and to
recover provable damages up to the amount of the bond.

Martin v.

Litton Loan Servicing, LP, 689 F. App’x 533, 533 (9th Cir. 2017)
(citing Nintendo of Am. v. Lewis Galoob Toys, Inc., 16 F.3d 1032,
1036 (9th Cir. 1994)).

DISCUSSION
Plaintiffs contend they are entitled to the funds they
deposited with the Court on the ground that even though BONY is a
prevailing party, BONY waived its right to collect the funds when
it voluntarily cancelled the nonjudicial foreclosure of
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- OPINION AND ORDER

Plaintiffs’ mortgage and failed to show that it sustained any
damages as a result of the TRO.
BONY, in turn, contends it was wrongfully restrained from
proceeding with the foreclosure and, as the prevailing party in
this action, is entitled to the funds deposited with the Clerk of
Court.
The Court notes the fact that BONY rescinded the prior
foreclosure proceeding or that Defendants prevailed in this
action is not determinative of any party’s right to recover the
bond proceeds.

Under Federal Rule of Civil Procedures 65(c) the

bond is intended to pay the costs and damages sustained by any
party found to have been wrongfully enjoined or restrained.
Although BONY prevailed on the merits of Plaintiffs’ claims and
was wrongfully enjoined from proceeding with the foreclosure
sale, BONY is, nevertheless, only entitled to recover damages
pursuant to the bond for “provable” damages resulting from the
wrongful restraint.

See Fidelity Nat'l Fin. Inc. v. Friedman,

472 F. App’x 577, 579 (9th Cir. 2012).
Here BONY has failed to present evidence of any damages as a
result of the issuance of the TRO.

In fact, BONY has a secured

interest in Plaintiffs’ property and states it will now pursue
nonjudicial foreclosure under the deed of trust at issue in this
litigation.

To the extent that BONY succeeds in such a

foreclosure action, it will recover damages resulting from
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- OPINION AND ORDER

Plaintiffs’ failure to pay their mortgage.

Thus, on this record

BONY has not presented evidence of any damages to support their
Motion.

Accordingly, the Court concludes the funds on deposit

with the Clerk of Court should be returned to Plaintiffs.

CONCLUSION
For these reasons, the Court DENIES Defendants’ Motion
(#165) to Disburse Funds and GRANTS Plaintiffs’ Motion (#164) for
Order to Withdraw and Disburse Funds.
The Court will enter a separate Order of Disbursement that
complies with Local Rule 67-3 for disbursement of funds to
Plaintiffs by the Clerk of Court.
IT IS SO ORDERED.
DATED this 7th day of November, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

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- OPINION AND ORDER