United States District Court, D. Oregon
STEPHEN A. RABUN, Plaintiff,
QUALITY LOAN SERVICE CORP. OF WASHINGTON, Defendant.
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE
Friday, August 10, 2018, Plaintiff pro se
(representing himself) filed his Complaint in this lawsuit
against Defendant Quality Loan Service Corp. of Washington
(“Quality Loan”) and Does 1 through 5. In his
Complaint, Plaintiff alleges violations of the federal Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692e(2) and 1692f(1); common law
conversion, and common law breach of contract by breach of
the implied duty of good faith and fair
dealing. Plaintiff seeks declaratory and injunctive
relief, actual, statutory, and punitive damages, and
reasonable attorney's fees and litigation expenses.
According to Plaintiff, on May 25, 2007, Plaintiff and his
wife took out a mortgage loan for $150, 000. Complaint,
¶¶ 13, 20. Plaintiff also alleges that the Oregon
real property that secured Plaintiff's loan is currently
scheduled for a non-judicial foreclosure sale on Monday,
August 13, 2018. Complaint, ¶ 25. Plaintiff appears to
have known of this impending foreclosure sale since at least
May 22, 2018. Complaint, ¶ 26 and Ex. A. On August 10,
2018, Plaintiff purports to have served his Complaint on
Quality Loan by placing a copy of that Complaint in the U.S.
mail, postage paid, addressed to Quality Loan's
registered agent for service of process in Seattle,
on Friday, August 10, 2018, Plaintiff filed an Emergency
Motion for Temporary Restraining Order and Preliminary
Injunction. In his motion, Plaintiff sees a Temporary
Restraining Order staying the non-judicial foreclosure sale
of Plaintiff's home, which Plaintiff states is scheduled
to occur on Monday, August 13, 2018. Plaintiff purports to
have served his Motion for Temporary Restraining Order on
Quality Loan by placing a copy of that motion in the U.S.
mail, postage paid, on Friday, August 10, 2018, addressed to
Quality Loan's registered agent for service of process in
Court held a telephonic hearing on Monday, August 13, 2018,
at 8:00 a.m. Plaintiff and his wife participated in the call,
but no one attended for Defendant Quality Loan. Plaintiff
explained to the Court that on Friday, August 10th, Plaintiff
contacted someone who works in the office of Quality
Loan's registered agent to inform Quality Loan of
Plaintiff's Complaint and Motion. Plaintiff also
confirmed that he has known for several months about August
13th date for the scheduled foreclosure sale.
65(b)(1) of the Federal Rules of Civil Procedure provides
that a federal court may issue a temporary restraining order
without written or oral notice to the adverse party or its
attorney only if immediate and irreparable injury
will result before the adverse party can be heard in
opposition and the movant certifies in writing regarding the
efforts to give notice to the adverse party or the reasons
why such notice should not be required. Plaintiff has not
satisfied the reasonable notice requirement.
hallmark of our adversarial system of justice requires that
both sides in a dispute be given an opportunity to be heard
before the Court enters any ruling or order affecting the
rights or interests of the parties. Although Rule 65(b)(1)
allows a court to issue a temporary restraining order without
notice to an adverse party, the circumstances when it is
appropriate to do so are quite limited and narrow. A motion
for a temporary restraining order may be denied simply on the
basis that timely and adequate efforts were not made to
notify the opposing side or when there is no justifiable
reason for issuing a temporary restraining order without
providing fair notice and a reasonable opportunity to be
heard in opposition. See Reno Air Racing Ass'n, Inc.
v. McCord, 452 F.3d 1126, 1131-32 (9th Cir. 2006).
the purported urgency of this matter, timely notice to the
adverse party could have-and should have-been given.
Plaintiff has known of the impending non-judicial foreclosure
sale scheduled for August 13, 2018, since at least May 22,
2018. The absence of timely notice to an adverse party and
the absence of a compelling reason for failing to give fair
and timely notice are not defects that should be easily
ignored, even for an unrepresented party. Plaintiff's
emergency ex parte Motion for Temporary Restraining
Order is DENIED without prejudice on the ground that
Plaintiff failed to give timely, sufficient, and reasonable
advance notice to Defendant and failed to provide to the
Court a sufficient basis for not doing so.
IS SO ORDERED.
 The Court notes that a trustee
conducting a non-judicial foreclosure is not a “debt
collector” subject to liability under the FDCPA.
See Ho v. ReconTrust Co., N.A., 858 F.3d 568, 573-76
(9th Cir. 2017).
 The Court notes that Plaintiff argues
that Oregon law does not recognize a tort of wrongful
foreclosure. Nevertheless, the Ninth Circuit has held that a
post-sale challenge is not barred by Or. Rev. Stat. §
86.797(1) if the sale is “based on lack of notice or
some other fundamental flaw in the foreclosure proceedings,
such as the sale being completed without the borrower
actually being in default.” Woods v. U.S. Bank
N.A., 831 F.3d 1159, 1166 (9th Cir. 2016) (citation
omitted). In addition, the Oregon Court of Appeals has held
that “the participation of a ‘trustee' is so
fundamental to a ‘trustee's sale' ” that
Or. Rev. Stat. § 86.797(1) does not bar a post-sale
challenge alleging that the sale of property was not