Meritage Homeowners' Association v. The Bank of New York Mellon, etc.
ORDER and OPINION: Denying Motion for a Temporary Restraining Order 22 . See, formal Order. Signed on 3/8/2017 by Judge Ann L. Aiken. (rdr) Modified on 3/9/2017 to correct docket entry caption. (rdr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ASSOCIATION, an Oregon domestic
Case No. 6: 16-cv-00300-AA
OPINION AND ORDER
THE BANK OF NEW YORK MELLON,
Fka The Bank of New York, as Trustee on Behalf
of the Holders of the Alternative Loan Trust 20060A21, Mo1tgage Pass Through Certificates Series
Plaintiff Meritage Homeowners' Association (HOA) moves the Court for a temporary
restraining order (TRO) requiring defendant, The Bank of New York Mellon (BNYM) to allow it
and its agents to access defendant's real property at 56 NW 33rd Place, Unit B, Newport, Oregon
97365 (the Unit) to turn on utilities, replace allegedly faulty windows, and make structural
improvements to the Unit at defendant's expense. Pl.'s Mot. for Temp. Restraining Order 2
I - OPINION AND ORDER
(#22). Plaintiff also moves the Court for an order to show cause why a preliminary injunction
should not issue.
For the reasons set forth below, plaintiffs motion for a temporary
restraining order and order to show cause (#22) is denied.
The Meritage is an eighteen unit planned townhome development overlooking the Pacific
Ocean in Newport, Oregon.
Pl.'s Comp!. '1l 1.
Plaintiff is an Oregon domestic nonprofit
corporation formed to be a HOA for the Meritage planned unit development. Id. Defendant has
been the undisputed owner of the Unit since August 27, 2015, after buying it pursuant to a 11
U.S.C. § 363 sale after the original owners filed for bankruptcy. Id. at '1! 8; Def.'s Resp. '1! 6.
Plaintiff filed suit on February 16, 2016, arguing, amongst other things, that the windows
installed in the Unit are defective resulting in water intrusion and damage to the property. Pl.'s
Comp!. '1! 16. Plaintiff asserted that pursuant to the CC&R's, defendant, as owner of the Unit, is
responsible for the maintenance of the exterior and structural components of the Unit, including
the windows. Id. at '1! l 7. Plaintiff fmther asserted that defendant failed to repair the windows
and this failure "is likely causing damage to components of the building [it] is responsible for
maintaining," and the damage is ongoing and cannot be mitigated because defendant owns and
controls access to the Unit. Id. Moreover, plaintiff asserted that because the townhomes are
common wall structures, the structural integrity of defendant's unit, as well as the adjoining
units, are degrading. Id. at '1! 18. Finally, plaintiff asserted that several units in the development,
including defendants Unit, required plywood to cover some of the windows after those windows
failed and fell out and that the plywood window coverings damage the value of the surrounding
units. Id. at '1! 19.
2 - OPINION AND ORDER
Plaintiffs Complaint listed three claims for relief, including a claim for nuisance, stating
that defendant has substantially and unreasonably interfered with plaintiffs reasonable
enjoyment of the property by maintaining exclusive possession of the Unit without repairing
"nuisance-causing windows," despite being put on notice that the windows are continuing to
cause damage to the Unit. Id. at
'if 42. Plaintiffs complaint sought injunctive relief requiring
defendant to repair the windows, as well as compensatory damages to repair the windows and
common elements that were allegedly damaged and "to compensate for the loss in in value to
surrounding units due to the financial burdens imposed by [defendant's] inaction." Id. at
On February 2, 2017, plaintiff filed the instant motion that is presently before the Court. (#22).
STANDARD OF REVIEW
The same general legal standards govern TROs and preliminary injunctions. Fed. R. Civ.
P. 65; New Motor Vehicle Ed. of Cal. V. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977). A
plaintiff seeking such relief must establish: (I) a likelihood of success on the merits; (2) a
likelihood of irreparable harm in the absence of preliminary relief; (3) the balance of equities tips
in the plaintiffs favor; and (4) a preliminary injunction is in the public interest. Winter v. Nat'/
Resources Def Council, 555 U.S. 7, 21 (2008). A court may not enter a preliminary injunction
without first affording the adverse party notice and an opportunity to be heard. Fed. R. Civ. P.
65(1)(2); People of the State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency,
766 F.2d 1319, 1322 (9th Cir. 1985). By contrast, an emergency TRO may be entered without
notice. See Fed. R. Civ. P. 65(b)(l)(A) (restricting availability of ex parte TROs to situations in
which "immediate and irreparable injury, loss, or damage will result to the movant before the
adverse patty can be heard in opposition.").
3 - OPINION AND ORDER
Plaintiff argues it is entitled to a TRO because defendant's refusal to replace the allegedly
defective windows is creating two kinds of irreparable harm. Pl.'s Mot. for a TRO 14. First,
plaintiff argues that the presence of plywood on the windows of defendant's Unit "will continue
to effectively destroy the ability of the other owners to market and sell their prope1ties" because
"the presence of plywood on windows in the complex is creating and perpetuating a stigma that
makes the properties virtually unsalable." Id.
Next, plaintiff asserts that not fixing the windows now will continue the degradation of
the structural components of the units and force other owners to pay more for other repairs. Id.
at 16. Specifically, plaintiff asserts that of the eighteen units in the development, only four units,
including defendant's Unit, still have the faulty windows installed and plywood coverings over
those windows. Id. at 3. Plaintiff asse1is that the other three remaining units are scheduled to
have the windows replaced and if defendant's Unit is included in that work package, the
contractor performing the work will provide a fifteen percent discount. Id. Plaintiff asserts that
if defendant's unit is not included in the work package, the remaining three unit owners will
enjoy a reduced discount of only ten percent, resulting in a lost group discount savings for those
owners of$47,500. Id.
A TRO is not justified here for two reasons. First, plaintiff's motion does not show the
type of emergency harm required by Rule 65(b)(l)(A). Plaintiff filed suit on February 16, 2016,
but did not move for a TRO until nearly a year later on February 2, 2017. The only additional
harm plaintiff alleges in its instant motion is a five percent reduction in the discount the three
other unit owners who are having their windows replaced will enjoy. However, as plaintiff
correctly asse1ted in its motion, "'if money damages will compensate for the harm, the injury is
4 - OPINION AND ORDER
not irreparable."' Id. at 13 (citing Los Angeles Memorial Coliseum Com. V. National Football
League, 634 F.2d 1197, 1201 (9th Cir. 1980)). Plaintiff has not explained why money damages
would be inadequate to compensate these owners for the reduction in the discount they would
receive absent defendant's participation in the repairs at this time.
Second, plaintiff has not shown irreparable harm. Rather, plaintiff specifically seeks
"authority to enter the premises and make the repairs." Pl.'s Mot. for a TRO 11. Thus, because
plaintiff seeks entry into the Unit to make repairs, it follows that the harm is not irreparable,
especially considering that plaintiff has not alleged that the circumstances have increased in
severity since filing its Complaint nearly a year ago. Accordingly, on the record before the
Court, there is no emergency justifying issuance of a TRO. As such, plaintiffs motion is denied.
Plaintiffs Motion for a TRO and Order to Show Cause Why Preliminary Injunction
Should Not Order (#22) is DENIED. At plaintiffs request, the Comt will ente1tain a motion for
a preliminary injunction, which plaintiff is free to request expedited consideration of pursuant to
IT IS SO ORDERED.
DATED thisU_ day ofEebr.uaey-2017.
United States District Judge
5 - OPINION AND ORDER
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