United States District Court, D. Oregon
MERITAGE HOMEOWNERS' ASSOCIATION, an Oregon domestic nonprofit corporation, Plaintiff,
THE BANK OF NEW YORK MELLON, Fka The Bank of New York, as Trustee on Behalf of the Holders of the Alternative Loan Trust 2006-OA21, Mortgage Pass Through Certificates Series 2006-AO21, Defendant.
OPINION AND ORDER
AIKEN United States District Judge
Meritage Homeowners' Association (HOA) moves the Court
for a temporary restraining order (TRO) requiring defendant,
The Bank of New York Mellon (BNYM) to allow it and its agents
to access defendant's real property at 56 N.W. 33rd
Place, Unit B, Newport, Oregon 97365 (the Unit) to turn on
utilities, replace allegedly faulty windows, and make
structural improvements to the Unit at defendant's
expense. PL's Mot. for Temp. Restraining Order 2 (#22).
Plaintiff also moves the Court for an order to show cause why
a preliminary injunction should not issue. Id. For
the reasons set forth below, plaintiffs motion for a
temporary restraining order and order to show cause (#22) is
Meritage is an eighteen unit planned townhome development
overlooking the Pacific Ocean in Newport, Oregon. Pl's
Compl. ¶ 1, Plaintiff is an Oregon domestic nonprofit
corporation formed to be a HOA for the Meritage planned unit
development. Id. Defendant has been the undisputed
owner of the Unit since August 27, 2015, after buying it
pursuant to a 11 U.S.C. § 363 sale after the original
owners filed for bankruptcy. Id. at ¶ 8;
Def.'s Resp. ¶ 6.
filed suit on February 16, 2016, arguing, amongst other
things, that the windows installed in the Unit are defective
resulting in water intrusion and damage to the property.
Pl's Compl. ¶ 16. Plaintiff asserted that pursuant
to the CC&R's, defendant, as owner of the Unit, is
responsible for the maintenance of the exterior and
structural components of the Unit, including the windows.
Id. at ¶ 17. Plaintiff further asserted that
defendant failed to repair the windows and this failure
"is likely causing damage to components of the building
[it] is responsible for maintaining, " and the damage is
ongoing and cannot be mitigated because defendant owns and
controls access to the Unit. Id. Moreover, plaintiff
asserted that because the town homes are common wall
structures, the structural integrity of defendant's unit,
as well as the adjoining units, are degrading. Id.
at¶ 18. Finally, plaintiff asserted that several units
in the development, including defendants Unit, required
plywood to cover some of the windows after those windows
failed and fell out and that the plywood window coverings
damage the value of the surrounding units. Id.
Complaint listed three claims for relief, including a claim
for nuisance, stating that defendant has substantially and
unreasonably interfered with plaintiffs reasonable enjoyment
of the property by maintaining exclusive possession of the
Unit without repairing "nuisance-causing windows, "
despite being put on notice that the windows are continuing
to cause damage to the Unit. Id. at ¶ 42.
Plaintiffs complaint sought injunctive relief requiring
defendant to repair the windows, as well as compensatory
damages to repair the windows and common elements that were
allegedly damaged and "to compensate for the loss in in
value to surrounding units due to the financial burdens
imposed by [defendant's] inaction." Id. at
¶ 43. On February 2, 2017, plaintiff filed the instant
motion that is presently before the Court. (#22),
STANDARD OF REVIEW
same general legal standards govern TROs and preliminary
injunctions. Fed.R.Civ.P. 65; New Motor Vehicle Bd. of
Col. V. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2
(1977). A plaintiff seeking such relief must establish: (1) a
likelihood of success on the merits; (2) a likelihood of
irreparable harm in the absence of preliminary relief; (3)
the balance of equities tips in the plaintiffs favor; and (4)
a preliminary injunction is in the public interest.
Winter v. Nat'l Resources Def. Council, 555 U.S.
7, 21 (2008), A court may not enter a preliminary injunction
without first affording the adverse party notice and an
opportunity to be heard. Fed.R.Civ.P. 65(1)(2); People of
the State of Cat ex rel. Van De Kamp v. Tahoe Regional
Planning Agency, 766 F.2d 1319, 1322 (9th Cir. 1985). By
contrast, an emergency TRO may be entered without notice. See
Fed. R, Civ. P. 65(b)(1)(A) (restricting availability of
ex parte TROs to situations in which "immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition.").
argues it is entitled to a TRO because defendant's
refusal to replace the allegedly defective windows is
creating two kinds of irreparable harm. PI.'s Mot. for a
TRO 14. First, plaintiff argues that the presence of plywood
on the windows of defendant's Unit "will continue to
effectively destroy the ability of the other owners to market
and sell their properties" because "the presence of
plywood on windows in the complex is creating and
perpetuating a stigma that makes the properties virtually
plaintiff asserts that not fixing the windows now will
continue the degradation of the structural components of the
units and force other owners to pay more for other repairs.
Id. at 16. Specifically, plaintiff asserts that of
the eighteen units in the development, only four units,
including defendant's Unit, still have the faulty windows
installed and plywood coverings over those windows.
Id. at 3. Plaintiff asserts that the other three
remaining units are scheduled to have the windows replaced
and if defendant's Unit is included in that work package,
the contractor performing the work will provide a fifteen
percent discount. Id. Plaintiff asserts that if
defendant's unit is not included in the work package, the
remaining three unit owners will enjoy a reduced discount of
only ten percent, resulting in a lost group discount savings
for those owners of $47, 500. Id.
is not justified here for two reasons. First, plaintiffs
motion does not show the type of emergency harm required by
Rule 65(b)(1)(A). Plaintiff filed suit on February 16, 2016,
but did not move for a TRO until nearly a year later on
February 2, 2017. The only additional harm plaintiff alleges
in its instant motion is a five percent reduction in the
discount the three other unit owners who are having their
windows replaced will enjoy. However, as plaintiff correctly
asserted in its motion, '"if money damages will
compensate for the harm, the injury is not
irreparable.'" Id. at 13 (citing Los
Angeles Memorial Coliseum Com. V. National Football
League, 634 F, 2d 1197, 1201 (9th Cir. 1980)). Plaintiff
has not explained why money damages would be inadequate to
compensate these owners for the reduction in the discount
they would receive absent defendant's participation in
the repairs at this time.
plaintiff has not shown irreparable harm. Rather, plaintiff
specifically seeks "authority to enter the premises and
make the repairs." Pl's Mot. for a TRO 11. Thus,
because plaintiff seeks entry into the Unit to make repairs,
it follows that the harm is not irreparable, especially
considering that plaintiff has not alleged that the
circumstances have increased in severity since filing its
Complaint nearly a year ago. Accordingly, on the record
before the Court, there is no emergency justifying issuance
of a TRO. As such, plaintiffs motion is denied.
Motion for a TRO and Order to Show Cause Why Preliminary
Injunction Should Not Order (#22) is DENIED. At plaintiffs
request, the Court will entertain a motion for a preliminary
injunction, which plaintiff is ...