Buddle-Vlasyuk v. The Bank of New York Mellon et al

Filing 11

ORDER denying 5 Motion for TRO; denying 6 Motion for Preliminary Injunction, signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TAMARA BUDDLE-VLASYUK,
Plaintiff,

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No. CV11-5561-RBL
v.
THE BANK OF NEW YORK MELLON, et al.,
Defendants.

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ORDER DENYING MOTIONS FOR
TRO AND PRELIMINARY
INJUNCTIONS
[Dkt. #s 2, 3, 5, and 6]

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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 Tamara Buddle-Vlasyuk [Dkt. #s 2, 3, 5, and 6].

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Plaintiff seeks to restrain and enjoin the Defendants from pursuing foreclosure on her Property.

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Her Complaint and initial Motions were filed July 21, and were amended (and apparently served)

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on July 25. The sale was originally scheduled for July 29.

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Plaintiff claims to be the “party of record with exclusive possessory rights to Property

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commonly known as 7202 Meadow Park Road West, Lakewood, WA, 98499. She claims to be

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the “author’ of the unregistered/unsecured Note referenced in the “Deed of Trust” encumbering

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the Property (See Pierce County AFN 200604051025). She claims the Note and/or Deed of

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Trust were not properly registered under the Uniform Commercial Code, though she does not

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allege what was required, or why. Plaintiff seeks to restrain and enjoin the impending foreclosure

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of the Property by some or all of the Defendants.

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ORDER - 1

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Plaintiff’s Complaint, Memorandum in Support of Complaint [Dkt. #1], Motions [Dkt.

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#s 2, 3, 5 and 6] and supporting Affidavits [Exhibits to Dkt. #1] contain the following general

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contentions:

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Plaintiff denies that she 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 she signed the purported Note, or at least that it is not clear the
Note at issue is the one referenced in the Deed of Trust.

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Defendants have produced no valid enforceable perfected security interest in the
Property.

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Plaintiff has also filed a Memorandum in Support of her Complaint [Ex. 1 to Dkt. #1]

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which appears to be taken largely from one of the many “self help” websites related to avoiding

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foreclosure. It purports to list a variety of laws and legal opinions relating to the potential tax

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consequences of transferring a promissory note such as the one the Plaintiff admits signing. It

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also quotes extensively from Black’s Law Dictionary and Wikipedia on the subject of factors and

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factoring.

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Plaintiff also relies on her Affidavit, which describes her “intent” regarding the “loan

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contract” she admits making with her lender. She also claims she did not intend to make a loan

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contract subject to the UCC; that she intended that the Note and the Deed of Trust “stay together

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as a unit”, that the contract be subject to the tax code; and that she intended to make sure various

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tax laws were applied to ensure she did not pay the Note more than once. She admits she cannot

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even speculate about whether various taxes are due as the result of the apparent sale of her Note

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or the foreclosure, though her supporting documents seem to suggest that she claims some tax

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impropriety on the part of the lenders.

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Plaintiff also filed an affidavit of hardship in support of her contention that the

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foreclosure would have an immediate and adverse impact on her and upon her family.

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ORDER - 2

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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.

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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).
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 can establish that the elements

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of irreparable harm and public interest weigh in her favor, the Court must still be satisfied that

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Plaintiff has established that the balance of equities tips in her favor and that she is likely to

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succeed on the merits.

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With respect to the former, it appears from Plaintiff’s own filings that she has not paid on

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her mortgage since sometime prior to March 2010, as that is the date on the Notice of Trustee’s

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sale attached to the Plaintiff’s Amended Motion [Dkt. #5]. She attempts to raise a variety of

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technical defenses to the workings of the mortgage industry (“show me the note”); the tax

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consequences to the Defendants in foreclosing; and the legality and timing of the various

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transfers of the lender’s security interest in his home. Plaintiff does not even attempt to address

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whether she did or did not borrow money to purchase her home, or whether she paid her

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obligations under the terms of the Note she now disputes. She states only that she disputes the

ORDER - 3

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default, without describing, much less demonstrating, how she is not in default. The hardship

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Plaintiff’s family will undoubtedly endure is a factor in favor of an injunction. But neither it, nor

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the suggested technical imperfections in the foreclosure process, count as equities on the

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Plaintiff’s side of the ledger. The balance of equities weighs in favor of Defendants.

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Nor has the Plaintiff made any showing, whatsoever, that she is likely to succeed on the

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merits. Indeed it is unclear from the complaint and the motions exactly what claims she is trying

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to assert. Plaintiff’s admittedly speculative claims about potential tax consequences to the

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defendants have no bearing whatsoever on the validity of the Note or the foreclosure, and are not

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a “claim” upon which the Plaintiff could possibly prevail.

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

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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 her 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)).

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The Plaintiff has not met her burden to obtain a TRO or preliminary injunction. All
Motions for such relief are therefore DENIED.

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IT IS SO ORDERED.

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Dated this 8th day of August, 2011.

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A
RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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ORDER - 4