United States District Court, W.D. Washington, Seattle
ORDER DENYING PLAINTIFF'S MOTION FOR A TEMPORARY
HONORABLE RICHARD A. JONES, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's motion for a
temporary restraining order (“TRO”). Dkt. 20. For
the reasons stated below, the Court DENIES
23, 2016, Plaintiff Zina C. Ivy borrowed $254, 950.00 from
Bank 34, A Federal Bank. The loan was evidenced by a
promissory note and secured by a deed of trust encumbering
12847 SE 161st Street, Renton, WA 98058 (the
“Property”). Dkt. 8, Exs.1, 2. On or about
January 16, 2019, Bank 34 assigned all right, title,
interest, lien and estate in and to the Property under its
deed of trust to Wells Fargo Bank, N.A. by executing an
Assignment of Deed of Trust, recorded in Official Records of
the Auditor of King County, Washington under Instrument No.
20190116000709. Id., Ex. 3.
loan fell into default when Plaintiff failed to make her
monthly installment payments on November 1, 2018, and each
month thereafter. Id., Ex. 4. As a result of
Plaintiff's default, Wells Fargo appointed Quality Loan
Service Corporation of Washington (“QLS”) as
successor trustee by an Appointment of Successor Trustee.
Id., Ex. 5. Thereafter QLS recorded a Notice of
Trustee's Sale (the “NOTS”) in the Official
Records of the Auditor of King County, Washington under
Instrument No. 20190529001219. Id., Ex. 6. QLS
recorded a Notice of Discontinuance of Trustee's Sale in
Official Records of the Auditor of King County, Washington on
June 28, 2019, under Instrument No. 20190628000039.
Id., Ex. 7. The sale previously set for October 4,
2019, (id., Ex. 6, p. 2 ¶V.) has never been
held, and no trustee's sale is actively scheduled.
Plaintiff brings this TRO claiming that her home will be
solid within the next week. Dkt. 20.
preliminary injunction, issuance of a TRO is “an
extraordinary remedy never awarded as of right.”
Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir.
2015). Pursuant to Federal Rule of Civil Procedure 65(b), a
party seeking a TRO must make a clear showing (1) of a
likelihood of success on the merits, (2) of a likelihood of
suffering irreparable harm in the absence of preliminary
relief, (3) that the balance of hardship tips in her favor,
and (4) that a temporary restraining order in is in the
public interest. Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20 (2008) (articulating
standard for preliminary injunction); Stuhlbarg Int'l
Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839
n.7 (9th Cir. 2001) (noting that preliminary injunction and
temporary restraining order standards are
purposes of the pending motion, federal courts are courts of
limited jurisdiction and in considering a request for a TRO
the court is bound by the requirement that, as a preliminary
matter, it have before it an actual case or controversy.
City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983). With respect to the trustee's sale which
plaintiff seeks to enjoin, the court does not appear to have
an actual controversy before it. As noted above, Defendants
have recorded a Notice of Rescission of Notice of Default
which states that the previously recorded Declaration of
Default and Demand for Sale and the Notice of Breach an
Election to Cause Sale are rescinded, cancelled and
withdrawn. Dkt. # 8, Ex. 6. A trustee's sale of
Plaintiff's home is no longer authorized.
Plaintiff's application for a TRO would otherwise fail
because she does not establish a likelihood of success on the
merits. Plaintiff claims in her motion that Defendants do not
have any legal right to foreclose on her property and that
the Note and the Mortgage have been irreparably separated.
Dkt. 20. First, Washington courts have long recognized that a
security instrument follows the note it secures. McAfee
v. Select Portfolio Servicing, Inc., No. 71995-5-I, 2016
WL 884868 (Wash.Ct.App. Mar. 7, 2016); Deutsche Bank
Nat'l Tr. Co. v. Slotke, No. 73631-1-I, 2016 WL
107783, at *5 (Wash.Ct.App. Jan. 11, 2016) (collecting
cases). Second, Wells Fargo Bank, N.A. was at all relevant
times, the holder of the note (Dkt. 8, Ex. 4, pp. 2, 9) and
beneficiary of the deed of trust. Id., Exs. 2, 3, 4,
6. Specifically, Plaintiff's deed of trust named
“Bank 34” as the “Lender.”
Id., Ex. 2. The note was payable to “Bank 34,
A Federal Bank.” Id., Ex. 1. The deed of trust
defines the beneficiary of this security instrument as
Mortgage Electronic Registration Systems, Inc.
(“MERS”), solely as nominee for Lender and
Lender's successors and assigns (id., Ex. 2, p.
4), and RCW 61.24.005(2) defines the beneficiary as the
holder of the promissory note. On or about January 16, 2019,
Bank 34 assigned all right, title, interest lien and estate
in and to the Property under its deed of trust to Wells Fargo
Bank, N.A. Dkt. 8, Ex. 3. See Brown v. Dep't of
Commerce, 359 P.3d 771 (2015) (the clear legislative
purpose of the Deeds of Trust Act was to ensure the party
with authority to enforce and modify the promissory note is
the party who forecloses).
lender and beneficiary, Wells Fargo validly executed an
appointment of successor trustee in 2019. Thus, Wells Fargo
was authorized to enforce the promissory note by appointing a
successor trustee of the deed of trust and commencing
foreclosure. Therefore, for the reasons stated above,
Plaintiff has not demonstrated that she is entitled to
reasons stated above, the Court DENIES