Sellers et al v. Moynihan et al

Filing 6

ORDER: Plaintiffs' Denying Motion for a Preliminary Injunction and Temporary Restraining Order 2 is denied. Signed on 9/13/12 by U.S. District Judge Michael R. Hogan. (sln)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DONALD H. SELLERS, and GABRIELLE
LEGUALT,
Plaintiffs,
v.

BRIAN T. MOYNIHAN, and/or his
successor, individually and in his
official capacity as President/CEO
of BAC HOME LOANS SERVICING, LP,
en legis being used to conceal
fraud; JAMES F. TAYLOR, and/or his
successor, individually and in his
official capacity as President of
Finance & Administration RECONTRUST)
COMPANY, N.A., en legis being used )
to conceal fraud;
)
)
BRIAN T. MOYNIHAN, and/or his
successor, individually and in his )
official capacity as President/CEO )
of BANK OF AMERICA, en legis being )
used to conceal fraud; ANGELO
)
MAZILO, and/or his successor,
)
individually and in his official
)
capacity as President/CEO of
)
COUNTRYWIDE HOME LOANS, INC., en
)
legis being used to conceal fraud; )
R.K. ARNOLD and/or his successor,
)
individually and in his official
)
capacity as President/CEO of
)
MORTGAGE ELECTRONIC REGISTRATION
)
SYSTEMS, INC., en legis being used )
to conceal fraud; JOHN AND JANE
)
DOES (Investors) 1-10,000 and XYZ
)
)
CORPORATIONS 1-10,
)
Defendants.
)
)
____________________________________ )
1 - ORDER

No. 6:12-cv-1654-HO
ORDER

At

9:05

a.m.,

on

September

13,

2012,

plaintiffs

filed

a

complaint seeking declaratory and injunctive relief purportedly
under 18 U.S.C.

§

4

(misprision of felony)

and 42 U.S.C.

1983.

Plaintiffs complaint is incoherent and difficult to decipher.

They

allege violations of a variety of criminal statutes as well as
various

portions

of

the

Uniform

Commercial

Code

and

assert

unauthorized changes to "documents, agreements, contracts, notes,
and/or the like by any and all parties."

Plaintiffs further allege

that

complex

defendants

have

"created a

very

and

far-reaching

conspiracy involving all Defendant(s) to divest American citizens
of their real property and America its land."

Plaintiffs liken the

actions of defendants to "'homegrown terrorists' of the 1980's and
1990s that were terminated by the F.B.I. at the end of the last
century."
Plaintiffs also allege that defendants stamped "the Original
Promissory Note
Defendant(s)
Original

'PAY TO THE ORDER OF *** WITHOUT RECOURSE.'

knowingly, intelligently and willfully converted the

Promissory

or/monetized

the

Note

Original

to

'check'

Promissory

and

then

Note/check,

'cashed'
and

and

provided

Plaintiffs with Federal Reserve notes as a 'currency exchange' and
not as

a

loan."

misrepresentations

Plaintiffs
by

also assert
claiming

that defendants

that

the

ens

"made

legis

if

Defendant(s) loaned to [plaintiffs] as grantors the assets of the
ens legis,

when in fact the ens legis of Defendant ( s)

actually

exchanged [plaintiffs] as grantors original Promissory Note for the

2 - ORDER

cash

that

Defendant(s)

received

from

monetizing

[plaintiffs]

original Promissory Note."
Plaintiffs seek dismissal of "this foreclosure" because they
never consented to securitization of the mortgage or subsequent
transfers of the mortgage as modified.

Plaintiffs also contend

that defendants lack standing because they do not hold the note and
cannot act as the agent for the certificate holder for purposes of
foreclosure.
Along with the complaint, plaintiffs have filed a motion for
a preliminary injunction and temporary restraining order requesting
the

court

to

restrain

defendants

from

selling,

assigning,

transferring, or conveying their real property apparently scheduled
for foreclosure at 10:00 a.m. on September 13, 2012.
In seeking a temporary injunctive relief, plaintiffs must show
either

(1)

a

likelihood

of

success

on

the

merits

and

the

possibility of irreparable injury, or (2) the existence of serious
questions going to the merits and the balance of hardships tipping
in their favor.

The critical element in determining the test to be

applied is the relative hardship to the parties.

If the balance of

harm tips decidedly toward the plaintiffs, then the plaintiffs need
not show as robust a likelihood of success on the merits as when
the balance tips less decidedly.
F.2d 417, 422 (9th Cir. 1991).

Gilder v.

PGA Tour,

Inc.,

936

For purposes of injunctive relief,

serious questions refers to questions which cannot be resolved one
way or the other at the hearing on the injunction and as to which
the court perceives a need to preserve the status quo lest one side
3 - ORDER

prevent resolution of the questions or execution of any judgment by
altering the status quo.

Id.

difficult

as

and

doubtful,

Serious questions are substantial,
to

make

them

a

fair

ground

litigation and thus for more deliberative investigation.

for

Serious

questions need not promise a certainty of success, nor even present
a

probability

of

success,

success on the merits.

but

must

involve

a

fair

chance

of

Id.

Even if the balance of hardships tips sharply in plaintiffs'
favor,
there

however,
is

a

fair

it must be shown as an irreducible minimum that
chance

of

success

on the merits.

Stanley v.

University of Southern California, 13 F.3d at 1313, 1319.

(1994).

In this case, it is impossible to discern from the pleadings that
there is a fair chance of success.

It is highly unlikely that the

cited criminal and commercial statutes are applicable.

At best,

plaintiffs imply that assignments in the interest in the mortgage
note have not been recorded prior to a non-judicial foreclosure
which suggests a violation of the Oregon Trust Deed Act, O.R.S.
86.735.

Plaintiff Legault's Affidavit also implies a failure to

timely respond to a request for loan modification under O.R.S.
86.737.

§

§

However, plaintiffs fail to provide any evidence or even

appropriate allegations of unrecorded transfers of the deed or
underlying

mortgage

subsequent

failure

or
to

adequate
respond.

requests
Indeed,

for

modification

plaintiffs

provide

and
no

discussion of the creation of the deed of trust, the mortgage, and
any subsequent transfers.

The court has no basis for determining

whether any violations of the Oregon Trust Deed Act have occurred.
4 - ORDER

Plaintiff's

provide

insufficient

information

regarding

any

agreement resulting in the granting of a deed of trust or mortgage,
any default or lack thereof, any notice of default and notice of
sale, or any of possible violations of the procedures for a nonjudicial

foreclosure.

The

court

is

mindful

of

the

pitfalls

awaiting mortgage lenders and servicers who utilize the system
instituted by defendant Mortgage Electronic Registration Systems,
Inc.

(MERS), when availing themselves of non-judicial foreclosure

process.

See Niday v. GMAC Mortgage, LLC., 251 Or.App. 278 (2012).

However,

simply naming MERS

as

a

defendant

is

insufficient to

demonstrate a fair chance of success in a suit to enjoin a nonjudicial foreclosure.

Accordingly,

the request for a temporary

restraining order is denied.

CONCLUSION
For

the

reasons

stated

above,

plaintiffs'

Motion

preliminary injunction and temporary restraining order
denied.

DATED this

5 - ORDER

;_sf{

day of September, 2012.

for
( #2)

a
is