Opinion
Civ. No. 12-309-CL
03-01-2012
SARAH FOWLER, Plaintiff, 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.
TEMPORARY RESTRAINING ORDER
PANNER, J.
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 March 5, 2011 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 Services, Inc., 2011 WL 2119103, *3 (D. Or. May 25) (citing Burgett v. MERS, 2010 WL 4282105, at *2 (D. Or. Oct. 20) and In re McCoy, 2011 WL 477820, at *3-4 (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 1 day of March, 2012 at 10o'clock ____.
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OWEN M. PANNER
U.S. DISTRICT JUDGE