Gerber-Williams v. Aurora Loan Services LLC et al

Filing 11

ORDER denying 7 Motion for TRO by Judge Benjamin H Settle.(TG; cc mailed to plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHRISTINE E. GERBER-WILLIAMS,
Plaintiff,

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v.
AURORA LOAN SERVICES, LLC, et
al.,

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CASE NO. C11-5393BHS
ORDER DENYING
PLAINTIFF’S MOTION FOR
TEMPORARY RESTRAINING
ORDER

Defendants.

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This matter comes before the Court on Plaintiff Christine E. Gerber-Williams’s

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(“Gerber-Williams”) motion for temporary restraining order (Dkt. 7). The Court has

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reviewed the brief filed in support of the motion and the remainder of the file and hereby

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denies the motion for the reasons stated herein.

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I. PROCEDURAL HISTORY
On May 23, 2011, Gerber-Williams filed a complaint against Defendants Aurora

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Loan Services LLC, Mortgage Electronic Registration Systems, Inc. (“MERS”), and
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Cal-Western Reconveyance Corporation of Washington (“Cal-Western”) requesting
declaratory and injunctive relief. Dkt. 1.
On May 25, 2011, Gerber-Williams filed certificates of service for Defendants
Aurora Loan Services, LLC, and Cal-Western. Dkts. 4 & 5.

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ORDER - 1

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On May 27, 2011, Gerber-Williams filed a motion for temporary restraining order

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(Dkt. 6) and a motion for preliminary injunction (Dkt. 7). The preliminary injunction is

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noted to be heard on the Court’s June 24, 2011 calendar. No Defendant has appeared or

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responded to either motion.

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On May 27, 2011, Gerber-Williams submitted an affidavit of hardship. Dkt. 8.
On June 6, 2011, Gerber-Williams filed an emergency affidavit stating additional facts in
support of her motion for temporary relief. Dkt. 10.

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II. FACTUAL BACKGROUND

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Gerber-Williams claims that she is the owner of the properties located at 12121
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and 12123 108th Ave Ct. E, Puyallup, WA 98374 (“Property”). Dkt. 6, ¶ 10. She claims
that Cal-Western has scheduled a trustee’s sale of the Property for June 24, 2011. Id. ¶ 9.
She claims that the Property consists of two rental properties and that losing the income
from the rental properties would cause her “financial hardship.” Dkt. 8 at 1.
III. DISCUSSION

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The court may issue preliminary injunctive relief where a party establishes (1) a

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likelihood of success on the merits, that (2) it is likely to suffer irreparable harm in the

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absence of preliminary relief, that (3) the balance of hardships tips in its favor, and (4)

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that the public interest favors an injunction. Alliance for the Wild Rockies v. Cottrell,

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632 F.3d 1127, 1137–38 (9th Cir. 2011); Winter v. Natural Res. Def. Council, Inc., 129 S.

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Ct. 365, 374 (2008). A party can also satisfy the first and third elements of the test by

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raising serious questions going to the merits of its case and a balance of hardships that

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tips sharply in its favor. Alliance, 632 F.3d at 1137–38.

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In this case, Gerber-Williams has failed to meet her burden for temporary relief.
First, she has failed to show that she is likely to succeed on the merits of her claim.
While she does claim that MERS is an improper beneficiary under the Washington Deed

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of Trust Act, she has failed to show that this is a viable claim. It is true that the question
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ORDER - 2

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has been certified to the Washington Supreme Court (Vinluan v. Fidelity Nat’l Title &

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Escrow Co., No. 10-2-27688-2); it is also true, however, that this Court has consistently

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found this claim to be without merit. See, e.g., Freeston, v. Bishop, White & Marshall,

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P.S., 2010 WL 1186276 (W.D. Wash. 2010).1

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Second, Gerber-Williams has failed to show that she is likely to suffer irreparable

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harm in the absence of relief. The Property in question is her rental property and not her

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own home. The Court finds that the loss of rental income is not irreparable harm.

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IV. ORDER
Therefore, it is hereby ORDERED that Gerber-Williams’ motion for temporary
restraining order (Dkt. 7) is DENIED.
DATED this 13th day of June, 2011.

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A

BENJAMIN H. SETTLE
United States District Judge

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The order was recently upheld by the Ninth Circuit in a memorandum opinion.

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