Lyman et al v. Saxon Mortgage Services, Inc. et al

Filing 75

ORDER re 74 Proposed Order filed by Christopher Gene Lyman. Order granting preliminary injunction. (njvlc1, COURT STAFF) (Filed on 1/9/2012)

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CHRISTOPHER J. NEARY
Attorney at Law, #69220
110 South Main Street, Suite C
Willits, CA 95490
Telephone: [phone]
email: [e-mail]

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Attorney for Plaintiffs,
CHRISTOPHER GENE LYMAN and
JESSICA HELEN O’DANIEL

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA - EUREKA
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CHRISTOPHER GENE LYMAN; JESSICA ) UNLIMITED
) Case No. C11-00433 NJV
HELEN O’DANIEL
)
)
Plaintiffs,
) [Proposed] PRELIMINARY INJUNCTION
)
v.
)
MORTGAGE
ELECTRONIC )
REGISTRATION SERVICES, INC., a )
Delaware corporation; XZVR, INC., a )
Califor nia cor por ation; WESTERN )
PROGRESSIVE, LLC, a Delaware limited )
liability company; DEUTSCHE BANK )
NATIONAL TRUST COMPANY, a )
Tennessee corporation; IXIS REAL ESTATE )
CAPITAL TRUST 2005-HE-3; SAXON )
MORTGAGE SERVICES, INC.; OCWEN )
LOAN SERVICING, LLC; and DOES 6 )
through 1000, inclusive; DOES 1001 through )
)
2500, inclusive,
)
)
Defendants.
_____________________________________ )

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The Court having heard the arguments of the parties, and having reviewed the documents
and papers on file herein, and good cause appearing therefore,

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IT IS HEREBY ORDERED that, pending further order of this Court or judgment herein,

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defendants MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware

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corporation, erroneously sued herein as MORTGAGE ELECTRONIC REGISTRATION
[Proposed] PRELIMINARY INJUNCTION

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SERVICES, INC.; XZVR, INC., a California corporation; WESTERN PROGRESSIVE, LLC,

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a Delaware limited liability company; DEUTSCHE BANK NATIONAL TRUST COMPANY,

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a Tennessee corporation; IXIS REAL ESTATE CAPITAL TRUST 2005-HE-3; SAXON

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MORTGAGE SERVICES, INC.; OCWEN LOAN SERVICING, LLC and., their agents,

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employees, servants, and all persons acting under, in concert with or for them are restrained and

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enjoined from proceeding with a foreclosure on that certain real property commonly known

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as1956 Clover Drive, Willits, Mendocino County, California which is more specifically described

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as follows:

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Block 37, Lot 7, of Tract 86, Brooktrails Vacation Village
Subdivision as per map filed August 17, 1966 in Case 2, Drawer 7,
Page 1, Mendocino County Records as amended by Map filed
August 16, 1967, in Map Case 2, Drawer 7, Page 2;
Excepting and reserving all the water and water rights in, under or
flowing over said property or appurtenant thereto;

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Excepting and reserving therefrom fifty percent (50%) of all oil,
gas and other mineral and hydrocarbon substances below a plane
five hundred feet beneath the surface thereof, but without the right
of surface entry thereto, as reserved and excepted by the Bank of
California, National Association, a National Banking Association.

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A.P.N. 099-132-08-01
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This preliminary injunction shall remain in effect until April 6, 2012 or further order of
this Court whichever first occurs.

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Plaintiffs shall pay the sum of $1,l38.50 as a condition of the issuance of this preliminary

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injunction and for a bond; to be paid to an interest bearing Trust Account in care of Plaintiffs’

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counsel, Christopher J. Neary on or before the 15th day of each month, commencing February 1,

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2012, which sums shall be held in trust for the legal beneficiary of the underlying Note and Deed

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of Trust at issue herein on the foregoing described property. Plaintiffs shall further timely pay

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all taxes, insurance, and utility payments regarding the Property falling due within the time period

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this injunction is in effect. Counsel shall provide the Court and the parties with a status report

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regarding the balance of the Trust Account on a monthly basis, which report shall be submitted

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to the Court on or before the 15th day of each month, commencing on February 15, 2012.
[Proposed] PRELIMINARY INJUNCTION

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Defendants DEUTSCHE BANK NATIONAL TRUST COMPANY and/or OCWEN

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LOAN SERVICING, LLC may draw upon the deposited funds at any time upon ten days’ written

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notice to the Court upon agreeing to indemnify Plaintiffs from any damages they might suffer as

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a result of any other person or entity with a superior right to the claim of Defendant DEUTSCHE

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BANK NATIONAL TRUST COMPANY as beneficiary making a successful demand for payment

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of the secured obligation.

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Funds on deposit in the interest bearing trust account shall be under the control of the
Court to be disbursed as the Court may order.

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In the event that this Preliminary Injunction expires prior to further order of the Court,

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Plaintiffs may without the requirement of further briefing apply for an extension of this injunction

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on an ex parte basis.

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January 9, 2012

DATED: _______________

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__________________________________
THE HONORABLE NANDOR J. VADAS
Magistrate Judge of the U.S. District Court

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Approved as to form:

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HOUSER & ALLISON, APC

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_____/s/
__________________
JASON K. BOSS
Attorneys for Defendants
DEUTSCHE BANK NATIONAL TRUST COMPANY,
a Tennessee corporation; IXIS REAL ESTATE
CAPITAL TRUST 2005-HE-3; OCWEN LOAN SERVICING, LLC

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I, CHRISTOPHER J. NEARY, as custodian of the Trust Account into which all monthly

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payments by Plaintiffs will be deposited in compliance with this order, agree to the terms and

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conditions of this Order and will comply with its terms and/or any other Order from this Court

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concerning the funds to be deposited in compliance with this Order. I understand and agree that the

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funds deposited into the trust account shall remain under the control of the Court pursuant to this
[Proposed] PRELIMINARY INJUNCTION

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Order, and I agree that the funds will not be disbursed to anyone except as directed by written

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agreement between the Defendants named herein above and Plaintiffs, or the above-entitled Court’s

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Order.

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I SO AGREE.
NEARY AND O’BRIEN

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DATED: January 6, 2012

_________/s/________________
CHRISTOPHER J. NEARY
Attorneys for Plaintiffs,
CHRISTOPHER LYMAN and
JESSICA O’DANIEL

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[Proposed] PRELIMINARY INJUNCTION

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