Krieser v. Bank of New York Mellon

Filing 7

TEMPORARY RESTRAINING ORDER: Granting Motion for a Temporary Restraining Order 4 , from this day until 5/7/12 at 5:00 p.m. Hearing on whether to issue a preliminary injunction is set for 5/7/2012 at 01:30PM by Telephone before Judge Michael H. Simon. Ordered & Signed on 4/25/12 by Judge Michael H. Simon. (kf)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KENNETH W. KRIESER,

Plaintiff,

1:12-cv-695-CL
TEMPORARY RESTRAINING ORDER

v.
THE BANK OF NEW YORK MELLON,
AS TRUSTEE FOR THE CERTIFICATE
HOLDERS CWALT, INC., ALTERNATIVE
LOAN TRUST, 2006-18CB MORTGAGE
PASS-THROUGH TRUST CERTIFICATES,
SERIES 2006-28CB and RECONTRUST
COMPANY, N.A.,
Defendants.
SIMON, District Judge.

Plaintiff seeks an ex parte temporary restraining order to
enjoin the foreclosure sale of his house. Plaintiff alleges the
house is scheduled for a foreclosure sale on April 30, 2012 and
defendants have not complied with the legal requirements for a
valid non-judicial foreclosure. Amongst other arguments,
plaintiff alleges defendants failed to record all assignments of
the trust deed in the county land records prior to initiating the
foreclosure proceedings. In Oregon, a party initiating nonjudicial foreclosure proceedings must record all assignments of
the trust deed. ORS 86.735(1); Hooker v. Northwest Trustee
1

- ORDER

Services, Inc., 2011 WL 2119103, *3 (D. Or. May 25)

(internal

citation 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. Feb. 29). 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 (#4). 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: 243 Northview Drive, Eagle Point, Oregon,
from this day until Monday, May 7, 2012, at 5:00 p.m. I will hold
a hearing on whether to issue a preliminary injunction at 1:30
p.m. on May 7, 2012, by telephone. The Court will initiate the
call.
IT IS SO ORDERED.

DATED this

~(~
~J
day of April,

U

2012 at ~ o'clock

Michael H. Simon
United States District Judge
2

- ORDER

PH.