United States District Court, D. Oregon
JULIE M. SPEAR, Plaintiff,
v.
BANK OF AMERICA CORPORATION; BANK OF AMERICA, N.A.; GMAC MORTGAGE, LLC; CENLAR FSB; and OCWEN LOAN SERVICING, LLC, Defendants.
Abraham J. Barnett and Christene D. Cencer, The Barnett Firm,
LLC, Of Attorneys for Plaintiff.
James
P. Laurick, Kilmer, Voorhees & Laurick, PC, Of Attorneys
for Defendants Bank of America Corporation and Bank of
America, N.A.
Michael J. Farrell, MB Law Group, LLP, Charles T. Meyer,
Severson & Werson, Of Attorneys for Defendant Cenlar
Bank, FSB.
Jasmine C. Hites, Troutman Sanders LLP, Ethan G. Ostroff,
Troutman Sanders LLP, Of Attorneys for Defendants Ocwen Loan
Servicing, LLC and GMAC Mortgage, LLC.[1]
ORDER
Michael H. Simon United States District Judge
Plaintiff
Julie M. Spear (“Plaintiff” “Spear”)
asserts three substantive claims for relief against all
Defendants. Plaintiff alleges violations of the Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. §§
1681 et seq., violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §§
1692 et seq., and common law defamation. Plaintiff
seeks money damages, declaratory relief, preliminary and
permanent injunctive relief, and attorney's fees. Pending
before the Court is Plaintiff's motion for a temporary
restraining order (“TRO”) against Defendants Bank
of America Corporation (“BAC”), Bank of America,
NA (“BANA”), and Cenlar FSB
(“Cenlar”). ECF 5. Plaintiff seeks a TRO to
restrain Defendants BAC, BANA, and Cenlar from reporting to
credit bureaus and any other consumer reporting agencies any
matter concerning Plaintiff until a hearing on
Plaintiff's motion for preliminary injunction can be
heard. Plaintiff also seeks a similar preliminary injunction
against these three Defendants during the pendency of this
action. Id. Plaintiff does not seek a TRO against
Defendants Ocwen Loan Servicing, LLC (“Ocwen”) or
GMAC Mortgage, LLC (“GMAC”). ECF 12. Also before
the Court is Plaintiff's Motion for Expedited Hearing and
Related Discovery. ECF 13. In response to Plaintiff's
motions, Defendant BAC states that it is improperly named in
this lawsuit, and Defendant BANA takes no position on the
pending motion for TRO. ECF 20. Defendants BAC and BANA
oppose Plaintiff's motion for expedited discovery. ECF
22. Defendant Ocwen takes no position on Plaintiff's
motion for TRO. ECF 17. Defendant Cenlar opposes
Plaintiff's motion for TRO. ECF 21. The Court held a
hearing on February 22, 2018. For the following reasons, the
Court grants Plaintiff's motions.
STANDARDS
In
deciding whether to grant a motion for a temporary
restraining order, courts look to substantially the same
factors that apply to a court's decision on whether to
issue a preliminary injunction. See Stuhlbarg Int'l
Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839
n.7 (9th Cir. 2001). A preliminary injunction is an
“extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such
relief.” Winter v. Natural Res. Def. Council,
555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary
injunction generally must show that: (1) the plaintiff is
likely to succeed on the merits; (2) the plaintiff is likely
to suffer irreparable harm in the absence of preliminary
relief; (3) the balance of equities tips in favor of the
plaintiff; and (4) an injunction is in the public interest.
Winter, 555 U.S. at 20 (rejecting the Ninth
Circuit's earlier rule that the mere
“possibility” of irreparable harm, as opposed to
its likelihood, was sufficient, in some circumstances, to
justify a preliminary injunction).
The
Supreme Court's decision in Winter, however, did
not disturb the Ninth Circuit's alternative
“serious questions” test. Alliance for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th
Cir. 2011). Under this test, “‘serious questions
going to the merits' and a hardship balance that tips
sharply toward the plaintiff can support issuance of an
injunction, assuming the other two elements of the
Winter test are also met.” Id. at
1132. Thus, a preliminary injunction may be granted “if
there is a likelihood of irreparable injury to plaintiff;
there are serious questions going to the merits; the balance
of hardships tips sharply in favor of the plaintiff; and the
injunction is in the public interest.” M.R. v.
Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012) (citing
Cottrell).
Finally,
a TRO is necessarily of a shorter and more limited duration
than a preliminary injunction.[2] Thus, the application of the
relevant factors may differ, depending on whether the court
is considering a TRO or a preliminary
injunction.[3] Indeed, the two factors most likely to be
affected by whether the motion at issue is for a TRO or a
preliminary injunction are the “balancing of the
equities among the parties” and “the public
interest.”
FINDINGS
OF FACT
Based
on the evidence presented by the parties thus far, and
subject to revision after the hearing on Plaintiff's
motion for preliminary injunction, the Court finds the
following facts are more likely true than not:
1. On
or about December 14, 2004, Plaintiff entered into a line of
credit agreement with BAC or BANA, which gave Plaintiff the
ability to borrow up to fifty thousand dollars on a line of
credit secured by Plaintiff's home. In 2008, Plaintiff
entered into separate agreements with BAC, BANA, or other
Defendants for the ability to borrow up to an additional
thirty thousand on her line of credit. ...