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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

MERITAGE HOMEOWNERS’

ASSOCIATION,

Plaintiff, No. 6:16-cv-00300-AA

v. OPINION & ORDER

BANK OF NEW YORK MELLON,

Defendant.

_______________________________________

AIKEN, District Judge.

This case comes before the Court on a “Motion to Compel Receiver to Prosecute 

Claims” filed by Claimants Big Fish Partners (“Big Fish”) and Sue Cowden. ECF No. 

278. 

In their motion, Big Fish and Cowden seek to compel the Receiver to more 

aggressively pursue the Meritage HOA’s claims against Defendant Bank of New York 

Mellon (“BONY”). This motion was filed prior to the Court’s evidentiary hearing on 

the disputed claims against the Meritage HOA. In the course of that hearing, Big 

Fish Partners and Sue Cowden withdrew all but one of their claims, which concerned 

damage to a window on the Cowden Unit. After presentation of the evidence, that 

claim was disallowed in an opinion issued on March 29, 2024. ECF No. 359. 

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In the present motion, Big Fish and Cowden seek to compel the Receiver to 

litigate claims against BONY concerning plywood coverings on the BONY-owned unit 

prior to the contemplated sale of the HOA-owned units. Big Fish and Cowden assert 

that the plywood coverings will depress the sale prices and have a negative effect on 

the prices of the Units in the Meritage development. Big Fish and Cowden assert 

that the Receiver has a mandatory duty to aggressively pursue these claims.

Courts possess “extremely broad” power when “determin[ing]” the appropriate 

action to be taken in the administration of the receivership.” SEC v. Hardy, 803 F.2d 

1034, 1037 (9th Cir. 1986). The court’s power and its related “wide discretion” extend 

to “determine[ing] the appropriate relief in an equity receivership.” SEC v. Lincoln 

Thrift Ass’n, 577 F.2d 600, 606 (9th Cir. 1978). “The role of the receiver is equivalent 

to that of a bankruptcy trustee,” and “[l]ike trustees, receivers often must use their 

discretion to make difficult business decisions.” Bangor Hydro Elec. v. Bridgewell 

Resources, LLC, No. CV-10-726-HZ, 2011 WL 1630812, at *2 (D. Or. April 28, 2011). 

In the Court’s Order of May 25, 2018, the Receiver was vested with “all of the 

powers and duties of a duly constituted board of directors under the Oregon Planned 

Community Act, Meritage at Little Creek’s governing Declaration, and Meritage 

HOA’s bylaws.” Opinion and Order (the “May 2018 O&O”) at 9. ECF No. 157. ORS 

65.357 provides that a director of a nonprofit corporation is to act in (a) in good faith; 

(b) with “the care an ordinarily prudent person in a like position would exercise under 

similar circumstances;” and (c) in “a manner the director reasonably believes to be in 

the best interests of the corporation.” ORS 65.357(1). 

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As a preliminary matter, the Court notes that litigation of the substance of the 

claims between Meritage and BONY has been delayed by the necessity of resolving 

the disputed claims made against the HOA, including the claims made by Big Fish 

and Cowden, as well as those brought by PSRG Trust.1 As that issue has now been 

resolved, the Court anticipates that the case will move forward to resolution of the 

remaining issues. This is consistent with the expectations of the Receiver. Rohn 

Roberts Decl. ¶ 6. ECF No. 281-1. 

Additionally, the Court notes that the Receiver has not, as Big Fish and 

Cowden suggest, neglected the issue of the BONY Unit. That issue is part of this 

litigation and was discussed at length in the Court’s Opinion and Order of April 13, 

2018 (the “April 2018 O&O”), ECF No. 119. As BONY points out, the Court found 

that there were questions of fact that precluded summary judgment on a number of 

issues. April 2019 O&O, at 25-26, 29. And, as the Receiver points out, the HOA has 

not abandoned any claims or potential claims against BONY. The Receiver is 

required to act in good faith; with the care an ordinarily prudent person in a like 

position would exercise under similar circumstances; and in a manner the director 

reasonably believes to be in the best interests of the corporation. The Court has no 

reason to believe that the Receiver has not met his obligations under the statute or 

under the Declaration or the bylaws. The Receiver is not, however, required to 

1 The evidence at the hearing was that Big Fish Partners and PSRG Trust are both entities 

controlled by Kurt Freitag. This is described at some length in the Court’s Opinion & Order of 

March 29, 2024. ECF No. 359. 

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prosecute the HOA’s claims in the manner or on the timetable demanded by Big Fish 

or Cowden. 

The Court therefore DENIES Big Fish and Cowden’s Motion to Compel the 

Receiver to Prosecute Claims. ECF No. 278. 

 It is so ORDERED and DATED this _____ day of April 2024 

ANN AIKEN

United States District Judge

26th

/s/Ann Aiken

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