Wimmer v. Bank of New York Mellon, et al

Filing 8

TEMPORARY RESTRAINING ORDER: Granting Motion for a Temporary Restraining Order 4 , from this day until 4/10/12 5:00 p.m. Hearing on whether to issue a preliminary injunction is set for 4/10/2012 at 10:30AM in Medford Courtroom before Judge Owen M. Panner. Ordered & Signed on 3/28/12 by Judge Owen M. Panner. (kf)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ERIC J. WIMMER,

PIa

iff,

1:12-cv-498-CL
TEMPORARY RESTRAINING ORDER

v.
THE BANK OF NEW YORK MELLON,
AS TRUSTEE FOR THE CERTIFICATE
HOLDERS OF CWMBS, INC., CHL
MORTGAGE PASS-THROUGH TRUST
CERTIFICATES, SERIES 2007-3 and
RECONTRUST COMPANY, N.A.,

s.

De

PANNER, J.
Plaintiff seeks an ex parte temporary restraining order to
enjoin the forec
house is scheduled

ure sale of his house. PIa

r a

iff alleges the

reclosure sale on April 2, 2012 and

defendants have not complied with the legal requirements
valid non-judicial

losure. Amongst other arguments,

plaintiff alleges

s failed to record all ass

a

s of

the trust deed in the county land records prior to init
foreclosure proceedings. In Oregon, a party init

the
non-

judicial foreclosure proceedings must record all assignments of
1

- ORDER

,

I

the trust deed. ORS 86.735(1); Hooker v. Northwest Trustee
2011 WL 2119103, *3 (D. Or. May 25)

(internal

tation omitted; In re McCoy, 2011 WL 477820, at *3 4 (Bankr. D.
Or. Feb. 7)); James v. Recontrust Co., et aI, 2012 WL 653871, at
*19-20 (D. Or.). Plaintiff alleges MERS is list
bene

ci

as

on the deed of trust at issue.

Because of the alleged imminent foreclosure sa

,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
temporary restraining order (#3). Defendants, and

a
rs,

o

agents, etc ... , and other persons in active concert or
parti

ion with defendants, who receive actual not

of this

, are restrained from conducting a foreclosure sale for the
following property: 591 West Valley View Road, Ashland, Oregon,
s
court

until Tuesday, April 10, 2012, at 5:00 p.m. This
I hold a hearing on whether to issue a prel

injunction at 10:30 a.m. on April 10, 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

~,