Hanson v. American Brokers Conduit et al

Filing 32

ORDER denying 10 Plaintiff's Motion for Preliminary Injunction; denying 15 Plaintiff's Motion for TRO; denying 17 Plaintiff's Motion for TRO. Signed by Judge Ronald B. Leighton.(DN) Modified on 8/1/2011 (DN). (Copy mailed to plaintiff.)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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EDGAR HANSON,

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Plaintiff,

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No. CV11-5287-RBL

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v.

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US BANK, NA, et al.,
Defendants.

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ORDER DENYING MOTIONS FOR
TRO AND PRELIMINARY
INJUNCTIONS
[Dkt. #s 10, 15, and 17]

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This matter is before the court on a series of Motions for Temporary Restraining Orders

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and Preliminary Injunctions filed by Plaintiff Edgar Hanson [Dkt. #s 10, 15, and 17]. Plaintiff

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appears to seek to enjoin the Defendants from pursuing foreclosure on his property. It is not

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clear that any of the Defendants have been served1.
Plaintiff claims to be the “party of record with exclusive possessory rights to Property

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commonly known as 13516 NE 82nd Circle, Vancouver, WA, 98682. He acknowledges that two

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Deeds of Trust encumber the Property, Clark County AFNs 4282300 and 4282301. Plaintiff

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seeks to restrain and enjoin the apparently impending foreclosure of those properties by

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Defendant Northwest Trustees Services on behalf of some or all of the Defendants.
Plaintiff’s various Complaints, Motions, and supporting affidavits contain the following

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conclusory contentions:

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1

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Plaintiff’s “Certificate of Service” demonstrates only that the materials were mailed to each
defendant. There is some indication that Defendant MERS was subsequently personally served
[Dkt. #8]. In any event there have been appearances filed on behalf of a subset of the
Defendants, though none has opposed the Plaintiff’s Motions.
ORDER - 1

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Plaintiff denies that he has defaulted on the subject loan

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Plaintiff denies default has been proven

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Plaintiff denies that default can be proven

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Plaintiff denies the authenticity of the purported Note

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Plaintiff denies that he signed the purported Note

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Defendants have produces no valid enforceable perfected security interest in the

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Property. [See, e.g., Dkt. #s 10, 11,12;, 15]
In his later filings [Dkt. #17], plaintiff makes general and unclear allegations about the
tax consequences of Defendants’ “claim upon his estate.” He alleges impropriety (or perhaps

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simply negligence) in the manner and effectiveness of the “endorsements” of his Note to “BAFC

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2007-3” or US Bank N.A. He acknowledges that he has received a copy of the Note, but

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disputes that it is a “note” or that it is “negotiable” because it has a maturity date of longer than

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nine months.

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Plaintiff alleges that BAFC 2007-3 is a Pooling and servicing Agreement” for the

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purpose of claiming tax benefits of REMIC status under 26 USC §856, and he seeks to raise

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questions about the legality of various elections made by BAFC 2007-3 under the tax code,

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suggest the defendants are trying to evade taxes, and claiming that the alleged transfer of his note

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is “highly improbable” based on the timeline. He also claims that “required bonds” have not

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been posted. Finally, he claims that MERS is not a proper beneficiary under Washington law.

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Plaintiff has also filed an “affidavit of hardship” describing the very real monetary,

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emotional and mental issues he and his family would face in the event of foreclosure. He claims

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that the threatened harm to the Plaintiff outweighs any harm to the defendants in enjoining the

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foreclosure sale.

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Discussion.

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The purpose of a TRO is “preserving the status quo and preventing irreparable harm just

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so long as is necessary to hold a hearing [on the preliminary injunction application], and no

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longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415

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U.S. 423 (1974); see also Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir.

ORDER - 2

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2006). To obtain a TRO or a preliminary injunction, the moving party must show: (1) a

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likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in

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the absence of preliminary relief; (3) that a balance of equities tips in the favor of the moving

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party; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council,

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Inc., ___ U.S. ___, 129 S. Ct. 365, 376 (2008).

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Traditionally, injunctive relief was also appropriate under an alternative “sliding scale”

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test. The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008). However, the Ninth

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Circuit overruled this standard in keeping with the Supreme Court’s decision in Winter.

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American Trucking Ass’ns Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)

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(holding that “[t]o the extent that our cases have suggested a lesser standard, they are no longer

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controlling, or even viable”).

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Even if the Court assumes, without deciding, that Plaintiff Hansen can establish that the

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elements of irreparable harm and public interest weigh in his favor, the Court must still be

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satisfied that Hansen has established that the balance of equities tips in his favor and that he is

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likely to succeed on the merits.

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With respect to the balance of equities, it appears from plaintiffs’ flings that he has not

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paid on his mortgage since 2009. He seeks to raise a variety of technical defenses to the

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machinations of the mortgage industry (“show me the note”); the tax consequences to the

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Defendants in foreclosing on his estate; and the legality and timing of the various transfers of the

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lender’s security interest in his home. Plaintiff does not even attempt to address whether he did

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or did not borrow money to purchase his home, or whether he paid his obligations under the

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terms of the Note he now disputes. He states only that he disputes the default, without

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describing, much less demonstrating, how he is not in default. He claims the purchase proceeds

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were not a loan, but acknowledges that his lender “forwarded purchase monies and represented

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them as a loan.” [Dkt. #1 at 7] The hardship his family will undoubtedly endure is a factor in

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favor of an injunction. But neither it nor the suggested technical imperfections in the foreclosure

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process count as equities on the Plaintiff’s side of the ledger. The balance of equities weighs in

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favor of Defendants.

ORDER - 3

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Turning to the likelihood of success on the merits of the Plaintiff’s claims, Plaintiff has

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not made any, much less an adequate showing, on the merits of his claims. Indeed it is unclear

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from the complaints and the motions exactly what claims he is trying to assert. In his motion(s)

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he argues that the trustee’s sale is due to an “alleged default of an alleged loan obligation,” and

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that he “disputes” the loan and the default. Notwithstanding such “dispute,” Plaintiff does admit

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that the purchase money for his home was “forwarded” by the defendant lender.

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Because the Plaintiff is proceeding pro se, the Court extends some latitude to his

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pleadings. The Court nevertheless finds that the bulk of Plaintiff’s arguments appear to rest on

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the assertion that Defendants are not the original creditors and therefore lack standing to

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foreclose on the mortgage at issue. However, as this Court has concluded previously, courts

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“have routinely held that [a defendants’] so-called ‘show me the note’ argument lacks merit.”

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Freeston v. Bishop, White & Marshall, P.S., 2010 WL 1186276 (W.D. Wash. 2010) (quoting

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Diessner v. Mortgage Electronic Registration Systems, 618 F. Supp. 2d 1184, 1187 (D. Ariz.

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2009) (collecting cases)).1

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Further, whether or not the Plaintiff’s complaint presents a question regarding MERS’

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beneficiary status is irrelevant to whether or not he can obtain a TRO or preliminary injunction.

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In short, Plaintiff has failed to provide sufficient argument or competent evidence to establish

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that he is likely to prevail on this issue.

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The Plaintiff has not met his burden to obtain a TRO or preliminary injunction. All

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Motions for such relief are therefore DENIED. The remaining Motions on the court’s Docket

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will be addressed in a subsequent Order.

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IT IS SO ORDERED.

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Dated this 1st day of August, 2011.

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A
RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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ORDER - 4