United States District Court, D. Oregon
GARY C. GOSHA and KIT M. GOSHA, Plaintiffs,
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
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE
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).
reasons that follow, the Court GRANTS
Plaintiffs' Motion and DENIES
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.
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.
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.
December 13, 2016, the Court granted Defendants' Motions
(#75, #79) to Dismiss Plaintiffs' Complaint (Order #133)
and entered Judgment (#134) of Dismissal with prejudice
March 20, 2017, Plaintiffs filed with the Ninth Circuit a
Notice of Appeal (#147) of this Court's judgment.
25, 2017, BONY cancelled its nonjudicial foreclosure of
22, 2018, the Ninth Circuit issued a Mandate (#157) affirming
this Court's dismissal of Plaintiffs' case.
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
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 ...