Andersen v. Homecomings Financial et al

Filing 38

MEMORANDUM DECISION granting 37 Motion for Refund of Bond. Signed by Judge Ted Stewart on 05/01/2012. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

SCOTT M. ANDERSEN,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFF’S
MOTION FOR REFUND OF BOND

vs.

HOMECOMINGS FINANCIAL, LLC F/K/A
HOMECOMINGS FINANCIAL
NETWORK, INC., Delaware limited liability
company; AURORA LOAN SERVICES,
LLC, a limited liability company;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., a
Deleware corporation; JAMES H.
WOODALL, an individual; and DOES 1-10,

Case No. 2:11-CV-332 TS

Defendants.

Before the Court is Plaintiff’s Motion for Refund of Bond. This matter originated in the
Fourth Judicial District Court of Utah. Plaintiff therein filed a motion for a temporary restraining
order, which was granted. Plaintiff was ordered to post $500 as security pursuant to Utah R. Civ.
P. 65A(c). Soon after, the case was removed to this Court. Plaintiff filed a motion for

1

preliminary injunction, which was ultimately denied. All of Plaintiff’s claims have since been
dismissed.
Now before the Court is a motion from Plaintiff to return his $500 security. The security,
originally paid to the state court, was transferred to this Court in July 2011.
Under Utah Rule 65A(c)(1), a security is required unless “none of the parties will incur or
suffer costs, attorney fees or damage as the result of any wrongful order or injunction.” An
“injunction is wrongfully issued and recovery on the bond is permissible if it is finally
determined that the applicant was not entitled to the injunction.”1 The Utah rule does not state
the procedure for recovery on a security. However, because a security is required as a means of
insuring against damage caused by an injunction to the party wrongfully enjoined, it is clear that
the amount ofdamages, if any, stemming from the injunction must be shown by the aggrieved
party for the Court to determine how much of the security should be dispersed.
Mr. Anderson moved for return of his security on February 9, 2012. Defendants have yet
to respond, despite recent contact from this Court inquiring after the possibility of a filing.
Accordingly, having received no indication from Defendants that they will move against the
security and no opposition to the instant Motion, Plaintiff’s request will be granted.

1

Mountain States Tel. & Tel. Co. v. Atkin, Wright & Miles, Chartered, 681 P.2d 1258,
1262 (Utah 1984).
2

It is therefore
ORDERED that Plaintiff’s Motion for Refund of Bond (Docket No. 37) is GRANTED.
The $500.00 security in this matter is to be released to Scott M. Andersen, 743 S. Carterville Rd.
Orem, UT 84097.
DATED May 1, 2012
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

3