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Anderson v. Bank of America, N.A.

United States District Court, D. Idaho

June 19, 2015

EAMONN J. ANDERSON, an individual; JULIE A. ANDERSON, an individual, Plaintiffs,
v.
BANK OF AMERICA, N.A.; NORTHWEST TRUSTEE SERVICES;. U.S. BANK, NATIONAL ASSOCIATION, as Trustee for the Certificate holders of CSFB Mortgage-Backed Pass-Through Certificates, Series 2004-AR4; and Ocwen Loan Servicing, Inc., Defendants.

MEMORANDUM DECISION AND ORDER

EDWARD J. LODGE, District Judge.

Pending before the Court is Plaintiff Eamonn J. Anderson and Julie A. Anderson's Verified Complaint For: 1. Wrongful Foreclosure; 1. Violation of Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692e; 3. Quiet Title; 4. Civil RICO violations; 5. Civil Conspiracy; and 6. Declaratory Relief. Dkt. 1. The Plaintiffs are appearing pro se. There is no pending motion filed with the Court seeking injunctive relief, however, the Court notes the Complaint's Prayer for Relief includes a request that this Court issue a temporary restraining order and preliminary injunction restraining Defendants from continuing their efforts to conduct a Trustee's Sale of the Property. Id. at 18. The Complaint alleges the Property to be the real property located at 17393 W. Summerfield Rd., Post Falls, ID 83854 and that the trustee's sale date is June 25, 2015. Id. at 5 and 14.

The Court's review of the Complaint is undertaken with an eye on Ninth Circuit standards regarding pro se litigants. Tucker v. Carlson, 925 F.2d 330 (9th Cir. 1991). However, the Court reminds Plaintiffs that pro se litigants are held to same procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). A lawsuit is initiated by the filing of a Complaint, but in order for the Court to take action a motion must be filed. The Court does not act just because a Complaint requesting certain relief is filed.

To the extent Plaintiffs' Complaint could be construed as a motion for a temporary restraining order or motion for preliminary injunction, the motions are denied.

Plaintiffs' Complaint alleges Defendants do not have the right to foreclose on the Property as Defendant Bank of America, N. A. no longer owns the Note and Deed of Trust. The Deed of Trust and Note are not attached to the Complaint. The allegations in the Complaint are not supported by any documentation. Many of the allegations are merely "suspicions" by Plaintiffs.[1] The Complaint alleges the actual mortgage at issue in this case is in the amount of $393, 617.41. Id. at 4. Plaintiffs do not allege they are not in default under the terms of the Deed of Trust and Note, rather they claim the Deed of Trust and Note should be cancelled, null and void.

Plaintiffs allege six causes of action in their Complaint: Wrongful Foreclosure; Violation of Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692e; Quiet Title; Civil RICO violations; Civil Conspiracy; and Declaratory Relief.

Analysis

Temporary restraining orders are governed by Federal Rule of Civil Procedure 65(b) which requires the moving party to show that "it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party... can be heard in opposition...." A court may issue a TRO without notice only if "specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition" and "the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Fed.R.Civ.P. 65(b)(1).

The Ninth Circuit has treated the standard for determining whether a temporary restraining order should be granted as the same as a preliminary injunction. Golden Gate Restaurant Ass'n v. City and County of San Francisco, 512 F.3d 1112, 1115 (9th Cir.2008). The Supreme Court clarified the standard for a preliminary injunction to require a plaintiff to show "[1] he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted).

"The basic function of a preliminary injunction is to preserve the status quo ante litem pending a determination of the action on the merits. Where no new harm is imminent, and where no compelling reason is apparent, the district court was not required to issue a preliminary injunction against a practice which has continued unchallenged for several years." Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985) (citation omitted); see also Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984) (stating the purpose of a temporary restraining order is to preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial nature is designed merely to prevent irreparable loss of rights prior to judgment.); Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979) ("Mandatory preliminary relief... is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.") (citation omitted).

In reviewing the Complaint, the Court finds Plaintiffs have not satisfied the Winter requirements that they are likely to succeed on the merits of their claims, that they will suffer irreparable harm, the balance of equities tips in Plaintiffs' favor and that a TRO would be in the best interests of the public.

In reviewing the Complaint, the Court finds only some of the causes of action are even possible for consideration of the issuance of a TRO. The Court will conduct a brief review of the likelihood of success on the merits of the following claims: wrongful foreclosure, quiet title, Truth-in-Lending Act and the Fair Debt Collections Practice Act.

As to the wrongful foreclosure claim, the Idaho Supreme Court rejected the same standing argument raised by Plaintiffs here in Trotter v. Bank of New York Mellon, holding that "a trustee may initiate nonjudicial foreclosure proceedings on a deed of trust without first proving ownership of the underlying note...." 275 P.3d 857 (Idaho 2012). This Court, in conformance with the Idaho Supreme Court's interpretation of Idaho law, likewise rejects Plaintiffs' argument that Defendants lack the ability to foreclose because they lack standing or must "prove" ownership of the original note. See Cherian v. Countrywide Home Loans, Inc. et. al., No. 1:12-cv-00110-BLW, 2012 WL 2865979 *3 (D. Idaho July 11, 2012).

A promissory note constitutes an instrument under Idaho Code §28-3-104(5), payable initially to original holder. See Idaho Code § 28-3-110. A "transfer" of an instrument occurs when it is delivered to another, and the person receiving delivery is given the right to enforce the instrument. Idaho Code § 28-3-203(1). An instrument may be transferred with or without an indorsement. Idaho Code § 28-3-203(3).[2] If an instrument is transferred without an indorsement, the transferee does not become a holder of the instrument, but still has an enforceable right to the unqualified indorsement of the transferor, and may enforce the right to payment as a non-holder in possession. Idaho Code 28-3-208(3); In re Wilhelm, 407 B.R. 392, 401 (Bankr. D. Idaho 2009) (explaining how a nonholder in possession may enforce rights under a note that was transferred to it.) In other words, an indorsement is not required for a subsequent transferee to enforce the terms ...


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