Fowler v. Bank of New York Mellon et al

Filing 6

ORDER: Granting Motion for a Temporary Restraining Order 3 , from this day until 3/14/12 at 5:00 p.m. Hearing on whether to issue a preliminary injunction is set for 3/14/2012 at 10:00AM in Medford Courtroom before Judge Owen M. Panner. Order Signed on 3/1/12 by Judge Owen M. Panner. (kf)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SARAH

Plaintiff,

C

. No. 12-309-CL

TEMPORARY RESTRAINING ORDER

v.
BANK OF NEW YORK MELLON, AS
TRUSTEE FOR THE CERTIFICATE
HOLDERS OF THE CWABS, INC.,
ASSET-BACKED CERTIFICATES,
SERIES 2005-16 TRUST and
RECONTRUST COMPANY, N.A.,
Defendants.

PANNER, J.

iff seeks an ex parte temporary restraining order to
enj

foreclosure sale of his house. Plaintiff alleges the

t

house is scheduled for a foreclosure sale on March 5, 2011 and
1 requirements for a

s have not complied with t

de

valid non judicial foreclosure. Amongst other arguments,
plaintiff alleges defendants failed to

all assignments of

the trust deed in the county land reco

or to initiating the

fore

osure proceedings. In Oregon, a

judicial
1

- ORDER

rty initiating non-

ure proceedings must reco

all assignments of

the trust deed. ORS 86.735(1); Hooker v. Northwest Trustee
Services. Inc., 2011 WL 2119103, *3 (D. Or. May 25)
Burgett v. MERS, 2010 WL 4282105, at *2
re McCoy, 2011 WL 477820, at *3-4

(citing

(D. Or. Oct. 20) and In

(Bankr. D. Or. Feb. 7)).

Plaintiff alleges MERS is listed as the beneficiary on the deed
of trust at issue.
Because of the alleged imminent foreclosure sale, and
because the presence of MERS demonstrates a high probability that
defendants did not comply with the recording requirements of the
Oregon Trust Deed Act,

I grant plaintiff's request for a

temporary restraining order (#3). Defendants, and their officers,
agents, etc ... , and other persons in active concert or
participation with defendants, who receive actual notice of this
order, are restrained from conducting a foreclosure sale for the
following property: 685 Beall Lane, Central Point, Oregon, from
this day until Wednesday, March 14, 2012, at 5:00 p.m. This court
will hold a hearing on whether to issue a preliminary injunction
at 10:00 a.m. on March 14, 2012, in the James A. Redden
Courthouse in Medford.
IT IS SO ORDERED.

DATED this

!

day of March, 2012 at /~

OWEN M. PANNER
U.S. DISTRICT JUDGE
2

- ORDER

o'clock