Orr v. U.S. Bank National Association

Background

Thomas W. Orr and Patra K. Orr filed a complaint concerning a nonjudicial foreclosure and a subsequent eviction. The complaint stated that the foreclosure apparently occurred in 2018 and that Thomas Orr was evicted in March 2021. The plaintiffs sought a preliminary injunction and an emergency temporary restraining order allowing them to reenter their home, preventing defendants from executing a foreclosure-related writ, voiding the foreclosure, and recalling a writ of possession. They also applied to proceed without paying filing fees.

Court’s Analysis

The court denied the request for an ex parte temporary restraining order because the plaintiffs did not show why notice to the opposing parties should not be required. The court noted that the plaintiffs had known about the 2018 foreclosure for more than two years and had not alleged that they lacked notice of the eviction.

The court also concluded that the complaint failed to state a claim upon which relief could be granted. Although the complaint listed several possible causes of action, it did not provide the short and plain statement required by Rule 8 of the Federal Rules of Civil Procedure. The court understood the complaint to allege, at least in part, wrongful foreclosure based on California Civil Code section 2924 and a violation of due process.

Regarding the foreclosure claim, the court found that the complaint did not allege facts showing that the relevant defendants failed to comply with the notice requirements of California Civil Code section 2924(g). Regarding due process, the court held that a nonjudicial foreclosure is not state action and therefore is not subject to the federal or state constitutional due process clauses.

Because the plaintiffs’ complaint was filed without a lawyer, the court allowed them an opportunity to amend rather than dismissing it without leave to amend. The order required any amended complaint to be filed by June 14, 2021, and stated that failure to amend could lead to dismissal under Rule 41(b) for failure to prosecute.

Disposition

Judge Yvonne Rogers ordered the following:

- The plaintiffs’ application to proceed without paying filing fees was granted. - The complaint was dismissed with leave to amend. - The requests for a preliminary injunction and temporary restraining order were denied. - The motion to dismiss filed by U.S. Bank National Association, Anglin Flewelling & Ramussen LLP, and Michael Rapkine was denied as moot.

The order terminated Docket Numbers 2 and 8.