IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

CLEATUS W. SHONK; RAE ANN 

SHONK, 

Plaintiffs, 

v. 

US BANK, NA, as Legal Title 

Trustee for Truman 2013 SC4 

Title Trust; NORTHWEST 

TRUSTEE SERVICES, INC. 

Defendants. 

AIKEN, District Judge: 

1:15-cv-2428-CL 

ORDER 

This matter comes before the Court on Plaintiffs' Motion for 

a Temporary Restraining Order (TRO) (#18). Plaintiffs seek to 

enjoin the non-judicial foreclosure sale currently scheduled for 

March 23, 2016. Plaintiffs' motion is DENIED. 

The standard for a temporary restraining order (TRO) is 

essentially identical to the standard for a preliminary 

injunction. See Stuhlbarg Intern. Sales Co., Inc. v. John D. 

Brush and Co., Inc., 240 F.3d 832, 839, n. 7 (9th Cir. 2001); see 

also Sam v. Deutsche Bank Nat'l Trust Co., 3:13-cv-1521-MO, 2013 

1 - ORDER 

Case 1:15-cv-02428-CL Document 23 Filed 03/22/16 Page 1 of 5
WL 6817888, at *1 (D. Or. Dec. 23, 2013). 

"A plaintiff seeking a preliminary injunction must establish 

that he is likely to succeed on the merits, that he is likely to 

suffer irreparable harm in the absence of preliminary relief, that 

the balance of equities tips in his favor, and that an injunction 

is in the public interest." Winter v. Nat. Res. Def. Council, 

Inc., 555 U.S. 7, 20 (2008). 

Further, a TRO may only be issued without notice to the 

adverse party if the moving party shows "specific facts in an 

affidavit or a verified complaint clearly show that immediate and 

irreparable injury, loss, or damage will result to the movant 

before the adverse party can be heard in opposition[,]" and "the 

movant's attorney certifies in writing any efforts made to give 

notice and the reasons why it should not be required." Fed. R. 

Ci v. P. 65 (b) ( 1) . 

As a final matter, the court may issue 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." Fed. R. Civ. P. 65(c). 

In this case, Plaintiffs seek to enjoin the pending sale of 

their property by non-judicial foreclosure. Plaintiffs contend 

that Defendant US Bank is not entitled to proceed with nonjudicial foreclosure because there are unrecorded transfers of 

2 - ORDER 

Case 1:15-cv-02428-CL Document 23 Filed 03/22/16 Page 2 of 5
Plaintiffs' loan in violation of ORS 86.752 1 • 

ORS 86.752 provides that in order to proceed with a nonjudicial foreclosure, the foreclosing entity must record "any 

assignments of the trust deed by the trustee or the beneficiary 

and any appointment of a successor trustee" in "the mortgage 

records in the counties in which the property described in the 

deed is situated." ORS 86.752(1). In Brandrup v. ReconTrust Co., 

the Oregon Supreme Court held that ORS 86.752 does not require 

recordation of assignments of the trust deed by operation of law 

and that "for the purposes of [former) ORS 86.735(1), 'assignments 

of the trust deed' means written assignments that are executed an 

acknowledged with [deed-like) formalities." Brandrup v. 

ReconTrust Co., 353 Or. 668, 699 (2013). Plaintiffs allege that 

they believe the unrecorded transfers were accompanied by some 

sort of documentation, but there is nothing in this record to 

indicate that such a writing exists or that it reaches the level 

of formality discussed by the Oregon Supreme Court in Brandrup. 

Plaintiffs further allege that they applied for a loan 

modification and that the loan's then-servicer improperly rejected 

their modified payments. I note, however, that the Complaint only 

indicates that Plaintiffs "applied" for a loan modification, not 

that Defendants (or Defendants' predecessors in interest) actually 

entered into such a modification. Comp. at 5. Similarly, the 

Affidavit of Plaintiff Cleatus Shonk indicates that Plaintiffs' 

1 Plaintiffs' complaint and motion cite to ORS 86.735, which 

was renumbered as ORS 86.752 in 2013. For the sake of clarity, I 

refer to the statute by its current designation. 

3 - ORDER 

Case 1:15-cv-02428-CL Document 23 Filed 03/22/16 Page 3 of 5
first application for a HAMP modification, made in 2010, was 

rejected and that Plaintiffs again applied for a modification in 

August 2011 shortly before they were alleged to have defaulted. 

Billin Aff. Ex. 2 at 3. There is nothing in the record to support 

the contention that the bank actually accepted Plaintiffs' 

application for a modification and Plaintiffs affirm that they 

stopped making payments entirely in November 2011. Id. 

On this record, I cannot conclude that Plaintiffs have made a 

sufficient showing of likely success on the merits of their claim. 

On the issue of irreparable harm in the absence of injunctive 

relief, Plaintiffs' own motion appears to concede that the sale 

will not prevent them from pursuing their claims against 

Defendants. On the issue of the balance of equities, Plaintiffs 

assert that Defendants will suffer minimal harm from the granting 

of the TRO. I note, however, that the sale has been scheduled for 

several months and that Plaintiffs filed this action in December 

2015, yet Plaintiffs waited until less than one week before the 

scheduled sale date to pursue injunctive relief. This delay does 

not weigh in Plaintiffs' favor. Similarly, I do not find that the 

public interest weighs in favor of granting a temporary 

restraining order. 

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4 - ORDER 

Case 1:15-cv-02428-CL Document 23 Filed 03/22/16 Page 4 of 5
Conclusion 

Plaintiff's Motion for a Temporary Restraining Order (#18) is 

DENIED. 

IT IS 

DATED 

5 - ORDER 

SO ORDERED. 

this :J.j)-.. day of March, 2016. 

ANN AIKEN 

DISTRICT JUDGE 

Case 1:15-cv-02428-CL Document 23 Filed 03/22/16 Page 5 of 5