Smith et al v. Northwest Trustee Services Inc. et al

Filing 23

ORDER denying 2 Motion for TRO; denying 3 Motion for Preliminary Injunction; denying 9 Motion for TRO, signed by Judge Ronald B. Leighton.(DN) Modified on 8/12/2011 (DN). (Copies mailed to plaintiffs.)

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HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 ERIN P. SMITH & TANESHA N. SMITH, 9 Plaintiffs, 10 No. CV11-5364RBL v. 11 NORTHWEST TRUSTEE SERVICES, INC., et al., 12 13 ORDER DENYING MOTIONS FOR TRO AND PRELIMINARY INJUNCTION [Dkt. #s 2, 3, & 9] Defendants. 14 15 This matter is before the court on the Plaintiffs’ Motions for a Temporary Restraining 16 17 Order [Dkt. #s 2 & 9], and for a Preliminary Injunction [Dkt. #3]. Plaintiffs seek to restrain and 18 enjoin the Defendants from pursuing foreclosure on their Property. Plaintiffs’ Complaint and 19 Motions claim a variety of improprieties and violations in the manner in which the Defendants 20 acquired and seek to foreclose on their Note and Deed of Trust. Plaintiffs1 claim to be the party of record ownership of Property commonly known as 21 22 1425 south 76th Street, Tacoma, WA, 98445. They apparently owned the Property outright until 23 1990. They admit that, in 1998, they executed a $92,250 Promissory Note and Deed of Trust on 24 the Property, and attach a copy of the Deed of Trust to the Compliant. [Dkt. #1, Ex. B]. 25 Plaintiffs allege a variety of subsequent transfers of the Deed of trust, and that the Note did not 26 1 27 28 Plaintiff Erin Smith is apparently Plaintiff Tanesha Smith’s mother. Tanesha Smith apparently resides on the Property. Carl Smith, whose name appears on the loan documents as Erin Smith’s husband, is not a party and his absence is not explained. They are referred to as “Plaintiffs,” even though it is not clear that Tanesha is a party to the loan documents. ORDER - 1 1 “follow” the Deed of Trust, as is “customary.” They allege that the various transfers were “late,” 2 based apparently on the “cut off” dates for various “Trusts.” Plaintiffs also include [Dkt. #1, Ex. 3 G] evidence suggesting that they were informed they were in arrears on their loan in July 2008. 4 They claim that under Bain v. OneWest, No. C09-0149JCC (Western District of Washington), it 5 is unclear whether MERS has a valid role in the foreclosure. [Dkt. #1] 6 7 8 Plaintiff’s Motions [Dkt. #s 2, 3, and 9] contain the following general and conclusory contentions: • They have not defaulted on the subject loan, and no default can be proven. 9 • Defendants have produced no valid security interest in the Property. 10 • They will be irreparably harmed by foreclosure. 11 • They are likely to prevail on the merits of their complaint. • Enjoining the foreclosure is in the Public Interest. • The hardship to the Defendants of enjoining the sale is not as great as the hardship 12 13 14 15 to the Plaintiffs in allowing the foreclosure to proceed. 16 • 17 No loan was ever performed. Discussion. 18 The purpose of a TRO is “preserving the status quo and preventing irreparable harm just 19 20 so long as is necessary to hold a hearing [on the preliminary injunction application], and no 21 longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 22 U.S. 423 (1974); see also Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir. 23 2006). To obtain a TRO or a preliminary injunction, the moving party must show: (1) a 24 likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in 25 26 the absence of preliminary relief; (3) that a balance of equities tips in the favor of the moving 27 party; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, 28 Inc., ___ U.S. ___, 129 S. Ct. 365, 376 (2008). ORDER - 2 1 Traditionally, injunctive relief was also appropriate under an alternative “sliding scale” 2 test. The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008). However, the Ninth 3 Circuit overruled this standard in keeping with the Supreme Court’s decision in Winter. 4 American Trucking Ass’ns Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) 5 (holding that “[t]o the extent that our cases have suggested a lesser standard, they are no longer 6 controlling, or even viable”). *** 7 8 9 Plaintiffs have failed as a matter of law to establish their right to a Temporary Restraining Order or a preliminary Injunction. The court will assume Plaintiffs can establish the element of 10 irreparable harm, as evidenced by their respective Affidavits of hardship. [Dkt. #s 11 & 12]. But 11 they have not met, and cannot meet, their burden of establishing that the remaining factors weigh 12 in favor of injunctive relief. 13 Because the Plaintiffs are proceeding pro se, the Court extends some latitude to their 14 pleadings. Nevertheless, the bulk of Plaintiffs’ arguments appear to rest on the purely 15 conclusory allegation that the Defendants have failed in some manner to properly initiate the 16 foreclosure. They suggest that these vague imperfections lead to the result that the Plaintiffs are 17 somehow not obligated to repay the money they seem to admit they borrowed. Moreover, as 18 this Court has concluded previously, courts “have routinely held that [a defendants’] so-called 19 ‘show me the note’ argument lacks merit.” Freeston v. Bishop, White & Marshall, P.S., 2010 20 WL 1186276 (W.D. Wash. 2010) (quoting Diessner v. Mortgage Electronic Registration 21 Systems, 618 F. Supp. 2d 1184, 1187 (D. Ariz. 2009) (collecting cases)). 22 The Plaintiffs have not established any remote likelihood of success on the merits of their 23 claims. It appears from Plaintiffs’ own filings that they have not paid on the mortgage in three 24 years. But the Plaintiffs have not articulated, much less demonstrated, what the defendants did 25 wrong, and they have failed to show how any such error would have the effect of relieving the 26 Plaintiffs of the obligation to repay their debt. 27 28 Not have the Plaintiffs met their burden of establishing that the balance of equities tips in their favor. They have alleged hardship (a separate element) but have not even addressed how ORDER - 3 1 they equities are in their favor. On the other hand, the plaintiffs have apparently been in 2 possession of a home they have not paid for, for some period of time. The balance of equities 3 weighs in favor of Defendants. 4 The final factor is the public interest. While it is perhaps true that the public has an 5 interest in exposing and preventing fraud and attorney misconduct, Plaintiffs have made no 6 showing whatsoever that either of those things occurred in this case. And it is clear that the 7 public has a broad interest in resolving the unfortunately vast array of in default loans adversely 8 affecting every bank in the country. Enjoining facially legitimate foreclosure sales is not in the 9 public interest; in fact, just the opposite is true. 10 11 The Plaintiffs have not met their burden to obtain injunctive relief. Their Motions [Dkt. #2, 3, and 9] for such relief are therefore DENIED. 12 IT IS SO ORDERED. 13 Dated this 12th day of August, 2011. 14 15 16 17 18 A RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 ORDER - 4

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