United States District Court, D. Oregon
AMANDA PERRY; MICHAEL ALLEN; TRINO LOPEZ; and ANDREA LOPEZ, Plaintiffs,
CLACKAMAS COUNTY SHERIFF'S OFFICE, a political subdivision of Clackamas County, Oregon, Defendant.
OPINION & ORDER
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE.
occupants of real property located in Oregon City, Oregon,
bring this 42 U.S.C. § 1983 action against Defendant
Clackamas County Sheriff's Office. Compl. ¶ 6, ECF
2. Plaintiffs contend that Defendant violated Plaintiffs'
constitutional rights by selling the real property pursuant
to an writ of execution which, under Oregon law, had expired.
Id. ¶¶ 10, 17. Plaintiffs contend that as
a result, Defendant had no authority to sell property.
Id. ¶ 18. Plaintiffs assert that
Defendant's actions deprived them of their property
rights without due process in violation of the Fourteenth
Amendment, and violated their Fourth Amendment rights by
unreasonably seizing the property and their home.
Id. ¶¶ 18, 25-30. As detailed more fully
below, Plaintiffs were evicted from the property on May 30,
2018. Id. ¶ 19. However, they have now returned
to the property. Nonetheless, they move for a temporary
restraining order (TRO) preventing "Defendant from
removing them once again" and restraining Defendant from
reentering the premises. TRO Mot. at 2, ECF 1. For the
reasons explained below, I deny the TRO motion.
standard for a TRO is "essentially identical" to
the standard for a preliminary injunction. Chandler v.
Williams, No. CV 08-962-ST, 2010 WL 3394675, at *1 (D.
Or. Aug. 26, 2010) (citing Stuhlbarg Int'l Sales Co,
v. John D. Brushy & Co., 240 F.3d 832, 839 n. 7 (9th
Cir. 2001)); see also Daritech, Inc. v. Ward, No.
CV-11-570-BR, 2011 WL 2150137, at * 1 (D. Or. May 26, 2011)
(applying preliminary injunction standard to motion for TRO).
"A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public
Trucking Ass'ns Inc. v. City of L. A., 559 F.3d
1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res.
Defense Council, Inc., 555 U.S. 7, 21 (2008)).
alleges that the property at issue was the subject of a
foreclosure action in Clackamas County, Oregon. Compl. ¶
13 (citing Clack. Cty. No. CV12100184). A General Judgment of
Foreclosure was entered in that case on September 21, 2016.
Id. ¶ 14; see also Leonard
June 14, 2018 Decl., Ex. 3, ECF 1-2 at 38-46 (Corrected
Gen'l Judgmt. of Foreclosure in favor of Wells Fargo Bank
against Timothy K. Mathes, Elisea R. Call, State of Oregon,
and Occupants of the Premises dated September 21, 2016).
Under that Judgment, a Deed of Trust executed by Mathes in
favor of Wells Fargo's predecessor in interest was
adjudged to be a valid lien against the property.
Id. As a result of that Judgment, the defendants in
that proceeding, including the "Occupants" were
"forever barred and foreclosed of all interest, lien, or
claim in the Property and every portion thereof excepting
only any statutory right of redemption provided by the laws
of the State of Oregon." Id.
4, 2017, a writ of execution was issued by the Clerk of the
Clackamas County Circuit Court. Compl. ¶ 14; see
also Leonard Decl., Ex. 1, ECF 1-2 at 5-19. Plaintiff
alleges that the writ was "duly delivered" to
Defendant. Compl. ¶ 14. The documents themselves show
that Defendant received the writ on June 13, 2017. Leonard
Decl., Ex. 1 at 5 (Return of Writ in which Clackamas County
Sheriff's Department Adrianna Dominguez certifies she
received the writ on June 13, 2017); Id. at 8 (Writ
of Execution stamped "Received" by Defendant on
June 13, 2017). Pursuant to the writ, the property was sold
on July 25, 2017. Compl. ¶ 15; Leonard Decl., Ex. 1, ECF
1-2 at 5-19. The writ was returned to the Clackamas County
Circuit Court on that date. Id.
April 2018, the bank, the judgment creditor in the general
judgment of foreclosure, filed a motion in the state court
civil action in Clackamas County, for a writ of assistance.
Leonard Decl., Ex. 4, ECF 1-2 at 47-54. The Clackamas County
Circuit Court granted the motion and the writ of assistance
was filed on April 12, 2018. Id. Defendant was
ordered to enforce the writ. Id. Defendant did so on
May 30, 2018 and removed Plaintiffs from the property.
7, 2018, the Clackamas County Circuit Court issued an order
in the same civil case number CV12100184, vacating the April
12, 2018 writ of assistance and quashing the writ. Leonard
Decl., Ex. 6, ECF 1-2 at 85-86. The Court did so based on the
motion of the "Occupants." Id. According
to assertions made by Plaintiffs in their TRO motion, they
moved to vacate the writ of assistance based on invalid
notice. TRO Mot. at 5. The Court ordered that the Occupants
be allowed to return to and occupy the property pending the
outcome of a hearing to be held within two weeks.
week later, Plaintiffs filed this action. In their Complaint,
they assert that they have not been allowed to return to the
property to gather the necessary medication for their
disabled children. Compl. ¶ 23. They further contend
that they have been forced to pay to stay at a motel and
board their dogs, all to their detrimental expense.
Id. They also allege that the developmentally
disabled children have reacted poorly to the sudden and
abrupt change in living situation and will require therapy at
a cost of $10, 000. Id. In the TRO motion,
Plaintiffs acknowledge that they were allowed to return to
their home as of June 7, 2018. TRO Mot. at 5.
basis of Plaintiffs' § 1983 claims is that under
Oregon Revised Statute § (O.R.S.) 18.872, the Sheriff
must return a writ of execution to the court administrator
within sixty days after the sheriff receives the writ. O.R.S.
18.872(1). A longer time, but no more than 150 days, may be
allowed if authorized by the person who requested the writ of
execution. Id. The court that issued the writ may
extend the time for return of the writ. Id.
Plaintiffs allege that Defendant has an unlawful policy of
placing writs of execution received from the circuit court in
a filing cabinet. Compl. ¶ 11. When Defendant "has
the time and inclination to act on the writ, " the writ
is retrieved and then stamped with the date received, which
starts the sixty-day clock provided for in O.R.S. 18.872(1).
Because, however, in this case, the writ is dated by the
circuit court on May 4, 2017, Plaintiffs allege that the sale
which occurred on July 25, 2017, is more than sixty days
after the issuance of the writ and thus, as of the date of
the sale, the writ had been expired for twenty-two days.
Id. This, according to Plaintiffs, voids the sale
because Defendant had no authority to conduct the sale.
allegations and the fact that they are currently occupying
the property (or have the right to) and are in active
litigation in a state court regarding their right to continue
to occupy the property, all indicate that the TRO motion must
be denied. First, no allegation indicates that any of the
four Plaintiffs was ever a property owner or party to the
Deed of Trust. Therefore, Plaintiffs were either tenants or
squatters on the property. Although Plaintiffs allege that
they had a right to possess the property up and until a valid
sheriff's sale was concluded, that is a conclusory
allegation of law and does not establish those rights for the
purpose of showing a likelihood of success on the merits of
the claims asserted here. Plaintiffs provide no law
indicating that as tenants or squatters, they have the right
to challenge the legality of a foreclosure sale. They also
provide no law indicating that they have the right to
challenge an allegedly untimely return of a writ of execution
under O.R.S. 18.872(1). Additionally, to the extent
Plaintiffs ever had any rights other than as tenants or
squatters, those rights were extinguished as a result of the
General Judgment of Foreclosure. And, as that Judgment makes
clear, any rights that Plaintiffs ever had were terminated
with that Judgment. Thus, ...