IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MERITAGE HOMEOWNERS' 

ASSOCIATION, an Oregon domestic 

nonprofit corporation, 

Plaintiff, 

v. 

THE BANK OF NEW YORK MELLON, 

Fka The Bank of New York, as Trustee on Behalf 

of the Holders of the Alternative Loan Trust 2006-

0A21, Mo1tgage Pass Through Certificates Series 

2006-A021, 

Defendant. 

AIKEN, Judge: 

Case No. 6: 16-cv-00300-AA 

OPINION AND ORDER 

Plaintiff Meritage Homeowners' Association (HOA) moves the Court for a temporary 

restraining order (TRO) requiring defendant, The Bank of New York Mellon (BNYM) to allow it 

and its agents to access defendant's real property at 56 NW 33rd Place, Unit B, Newport, Oregon 

97365 (the Unit) to turn on utilities, replace allegedly faulty windows, and make structural 

improvements to the Unit at defendant's expense. Pl.'s Mot. for Temp. Restraining Order 2 

I - OPINION AND ORDER 

Case 6:16-cv-00300-AA Document 30 Filed 03/08/17 Page 1 of 5
(#22). Plaintiff also moves the Court for an order to show cause why a preliminary injunction 

should not issue. Id. For the reasons set forth below, plaintiffs motion for a temporary 

restraining order and order to show cause (#22) is denied. 

BACKGROUND 

The Meritage is an eighteen unit planned townhome development overlooking the Pacific 

Ocean in Newport, Oregon. Pl.'s Comp!. '1l 1. Plaintiff is an Oregon domestic nonprofit 

corporation formed to be a HOA for the Meritage planned unit development. Id. Defendant has 

been the undisputed owner of the Unit since August 27, 2015, after buying it pursuant to a 11 

U.S.C. § 363 sale after the original owners filed for bankruptcy. Id. at '1! 8; Def.'s Resp. '1! 6. 

Plaintiff filed suit on February 16, 2016, arguing, amongst other things, that the windows 

installed in the Unit are defective resulting in water intrusion and damage to the property. Pl.'s 

Comp!. '1! 16. Plaintiff asserted that pursuant to the CC&R's, defendant, as owner of the Unit, is 

responsible for the maintenance of the exterior and structural components of the Unit, including 

the windows. Id. at '1! l 7. Plaintiff fmther asserted that defendant failed to repair the windows 

and this failure "is likely causing damage to components of the building [it] is responsible for 

maintaining," and the damage is ongoing and cannot be mitigated because defendant owns and 

controls access to the Unit. Id. Moreover, plaintiff asserted that because the townhomes are 

common wall structures, the structural integrity of defendant's unit, as well as the adjoining 

units, are degrading. Id. at '1! 18. Finally, plaintiff asserted that several units in the development, 

including defendants Unit, required plywood to cover some of the windows after those windows 

failed and fell out and that the plywood window coverings damage the value of the surrounding 

units. Id. at '1! 19. 

Ill 

2 - OPINION AND ORDER 

Case 6:16-cv-00300-AA Document 30 Filed 03/08/17 Page 2 of 5
Plaintiffs Complaint listed three claims for relief, including a claim for nuisance, stating 

that defendant has substantially and unreasonably interfered with plaintiffs reasonable 

enjoyment of the property by maintaining exclusive possession of the Unit without repairing 

"nuisance-causing windows," despite being put on notice that the windows are continuing to 

cause damage to the Unit. Id. at 'if 42. Plaintiffs complaint sought injunctive relief requiring 

defendant to repair the windows, as well as compensatory damages to repair the windows and 

common elements that were allegedly damaged and "to compensate for the loss in in value to 

surrounding units due to the financial burdens imposed by [defendant's] inaction." Id. at 'if 43. 

On February 2, 2017, plaintiff filed the instant motion that is presently before the Court. (#22). 

STANDARD OF REVIEW 

The same general legal standards govern TROs and preliminary injunctions. Fed. R. Civ. 

P. 65; New Motor Vehicle Ed. of Cal. V. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977). A 

plaintiff seeking such relief must establish: (I) a likelihood of success on the merits; (2) a 

likelihood of irreparable harm in the absence of preliminary relief; (3) the balance of equities tips 

in the plaintiffs favor; and (4) a preliminary injunction is in the public interest. Winter v. Nat'/ 

Resources Def Council, 555 U.S. 7, 21 (2008). A court may not enter a preliminary injunction 

without first affording the adverse party notice and an opportunity to be heard. Fed. R. Civ. P. 

65(1)(2); People of the State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 

766 F.2d 1319, 1322 (9th Cir. 1985). By contrast, an emergency TRO may be entered without 

notice. See Fed. R. Civ. P. 65(b)(l)(A) (restricting availability of ex parte TROs to situations in 

which "immediate and irreparable injury, loss, or damage will result to the movant before the 

adverse patty can be heard in opposition."). 

Ill 

3 - OPINION AND ORDER 

Case 6:16-cv-00300-AA Document 30 Filed 03/08/17 Page 3 of 5
DISCUSSION 

Plaintiff argues it is entitled to a TRO because defendant's refusal to replace the allegedly 

defective windows is creating two kinds of irreparable harm. Pl.'s Mot. for a TRO 14. First, 

plaintiff argues that the presence of plywood on the windows of defendant's Unit "will continue 

to effectively destroy the ability of the other owners to market and sell their prope1ties" because 

"the presence of plywood on windows in the complex is creating and perpetuating a stigma that 

makes the properties virtually unsalable." Id. 

Next, plaintiff asserts that not fixing the windows now will continue the degradation of 

the structural components of the units and force other owners to pay more for other repairs. Id. 

at 16. Specifically, plaintiff asserts that of the eighteen units in the development, only four units, 

including defendant's Unit, still have the faulty windows installed and plywood coverings over 

those windows. Id. at 3. Plaintiff asse1is that the other three remaining units are scheduled to 

have the windows replaced and if defendant's Unit is included in that work package, the 

contractor performing the work will provide a fifteen percent discount. Id. Plaintiff asserts that 

if defendant's unit is not included in the work package, the remaining three unit owners will 

enjoy a reduced discount of only ten percent, resulting in a lost group discount savings for those 

owners of$47,500. Id. 

A TRO is not justified here for two reasons. First, plaintiff's motion does not show the 

type of emergency harm required by Rule 65(b)(l)(A). Plaintiff filed suit on February 16, 2016, 

but did not move for a TRO until nearly a year later on February 2, 2017. The only additional 

harm plaintiff alleges in its instant motion is a five percent reduction in the discount the three 

other unit owners who are having their windows replaced will enjoy. However, as plaintiff 

correctly asse1ted in its motion, "'if money damages will compensate for the harm, the injury is 

4 - OPINION AND ORDER 

Case 6:16-cv-00300-AA Document 30 Filed 03/08/17 Page 4 of 5
not irreparable."' Id. at 13 (citing Los Angeles Memorial Coliseum Com. V. National Football 

League, 634 F.2d 1197, 1201 (9th Cir. 1980)). Plaintiff has not explained why money damages 

would be inadequate to compensate these owners for the reduction in the discount they would 

receive absent defendant's participation in the repairs at this time. 

Second, plaintiff has not shown irreparable harm. Rather, plaintiff specifically seeks 

"authority to enter the premises and make the repairs." Pl.'s Mot. for a TRO 11. Thus, because 

plaintiff seeks entry into the Unit to make repairs, it follows that the harm is not irreparable, 

especially considering that plaintiff has not alleged that the circumstances have increased in 

severity since filing its Complaint nearly a year ago. Accordingly, on the record before the 

Court, there is no emergency justifying issuance of a TRO. As such, plaintiffs motion is denied. 

CONCLUSION 

Plaintiffs Motion for a TRO and Order to Show Cause Why Preliminary Injunction 

Should Not Order (#22) is DENIED. At plaintiffs request, the Comt will ente1tain a motion for 

a preliminary injunction, which plaintiff is free to request expedited consideration of pursuant to 

L.R. 7-l(g). 

IT IS SO ORDERED. 

~"It'-- !UtLcLd~ DATED thisU_ day ofEebr.uaey-2017. 

5 - OPINION AND ORDER 

al)__)./._ aivl<?,__,/ 

ANN AIKEN 

United States District Judge 

Case 6:16-cv-00300-AA Document 30 Filed 03/08/17 Page 5 of 5