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Spear v. Bank of America Corp.

United States District Court, D. Oregon

February 22, 2018

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. ...


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