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Gosha v. Bank of New York Mellon Corp.

United States District Court, D. Oregon

November 7, 2018

GARY C. GOSHA and KIT M. GOSHA, Plaintiffs,
v.
THE BANK OF NEW YORK MELLON CORPORATION fka THE BANK OF NEW YORK, AS TRUSTEE CWALT 2005-72, Delaware Corporation; BANK OF AMERICA N.A., a Delaware Corporation; BAYVIEW LOAN SERVICING LLC, a Florida Corporation; and CLEAR RECON CORP, a California Corporation, Defendants.

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE

         This matter comes before the Court on Plaintiffs' Motion (#164) for Order to Withdraw and Disburse Funds and the Motion (#165) to Disburse Funds filed by Defendant Bank of New York Mellon Corporation (BONY).

         For the reasons that follow, the Court GRANTS Plaintiffs' Motion and DENIES Defendant's Motion.

         BACKGROUND

         On January 15, 2016, Plaintiffs appearing pro se brought this action to prevent foreclosure of the mortgage on their property. The mortgage was held by BONY and serviced at various times by Defendants Bayview Loan Servicing LLC and Clear Recon Corp. Plaintiffs alleged several claims against all Defendants for violation of various consumer-protection laws. Plaintiffs also sought a temporary restraining order (TRO) to prevent the foreclosure sale.

         On January 25, 2016, the day before the foreclosure sale on Plaintiffs' home was scheduled to occur, the Court granted Plaintiffs' Motion for a TRO and enjoined the foreclosure during the pendency of this action. Order (#18). The Court also directed Plaintiffs to deposit funds monthly with the Clerk of Court as bond for the TRO.

         Plaintiffs made various payments to the Clerk of Court during this litigation pursuant to the Court's Order. See Docket #23, #47, #54, #90, #91, #109, #110, #129, and #132. The funds held by the Clerk of Court total $5, 300.

         On December 13, 2016, the Court granted Defendants' Motions (#75, #79) to Dismiss Plaintiffs' Complaint (Order #133) and entered Judgment (#134) of Dismissal with prejudice against Plaintiffs.

         On March 20, 2017, Plaintiffs filed with the Ninth Circuit a Notice of Appeal (#147) of this Court's judgment.

         On May 25, 2017, BONY cancelled its nonjudicial foreclosure of Plaintiffs' mortgage.

         On June 22, 2018, the Ninth Circuit issued a Mandate (#157) affirming this Court's dismissal of Plaintiffs' case.

         STANDARDS

         Federal Rule of Civil Procedure 65(c) provides: “The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”

         There is a “rebuttable presumption” that a wrongfully enjoined party is entitled to have the bond executed and to recover provable damages up to the amount of the bond. Martin v. Litton Loan Servicing, LP, 689 Fed.Appx. 533, 533 (9th Cir. 2017) (citing Ni ...


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