Opinion
No. CV 11-135-PHX-JAT.
February 16, 2011
ORDER
Pursuant to the stipulation of the parties as entered into the record, and based on the exhibits received in evidence, the argument of the parties, and the written filings by the parties, the Court grants Plaintiffs' motion for preliminary injunction (Doc. 10) as follows.
By the stipulation on the record, the parties agreed that Plaintiffs would not be required to post a bond.
IT IS ORDERED that the Court finds that the lien which is Exhibit 8 in evidence is invalid as envisioned in A.R.S. § 33-420(b) and based thereon, the Court grants the relief specified in A.R.S. § 33-420(b) and orders Bank of America to immediately clear title to the real property referred to in this record as the primary residence and located at 13918 North 98th Place, Scottsdale, Arizona further described as Assessor Parcel No. 217-50-783 and further described as: Lot 49, of Madrid, according to the plat of record in the office of the county recorder of Maricopa County in Book 622 of Maps, Page 33.
IT IS FURTHER ORDERED that the title be cleared by Bank of America executing the release documents evidenced in Exhibit 34 by 5:00 p.m. Friday, February 18, 2011.
A copy of which is attached.
IT IS FURTHER ORDERED that the Court finds that the relief requested and granted by this Court is specifically provided for by statute in A.R.S. § 33-420(b) and to the extent this is considered injunctive relief and to the extent it requires a finding of irreparable harm, the Court finds it is presumed in the statutory section referenced.
IT IS FURTHER ORDERED that Plaintiffs shall not encumber the secondary residence at 14417 North 99th Street, Scottsdale, Arizona, Assessor Parcel No. 217-16-831 Lot 118, of Costa Verde, according to the Plat of Record in the Office of the County Recorder of Maricopa County known as 14417 North 99th Street, and evidenced in Exhibit 4 in evidence, until they have caused to be executed and recorded a corrective deed of trust securing Bank of America's interest in that property, which shall be entered within 30 days from the date of this Order.
IT IS FURTHER ORDERED that by virtue of this the stipulation between the parties and by virtue of this Court's order there is no waiver of the rights of the parties to pursue their claims for damages.
IT IS FURTHER ORDERED that Defendant's oral motion to amend the answer is denied as moot.
IT IS FURTHER ORDERED that Plaintiffs' oral motion to consolidate the Rule 65 hearing with a trial on the merits is denied.
DATED this 16th day of February, 2011.
When recorded, return to:
Quarles Brady LLP
Renaissance One
Two North Central Avenue
Phoenix, Arizona 85004-2391
Attention: Ryan S. Patterson, Esq.
DEED OF FULL RELEASE AND FULL RECONVEYANCE
Bank of America, NA, as Lender and beneficiary under that certain Deed of Trust ("Deed of Trust") executed by Richard J. Jewett and Donna Farrar NKA Donna J. Jewett, husband and wife, as Borrower and trustor, dated as of May 27, 2006, recorded on January 10, 2007, in the Official Records of Maricopa County, State of Arizona at Recorder's No. 2007-0041263, hereby releases and conveys to the person or persons legally entitled thereto, without covenant or warranty, express or implied, all right, title, interest and estate now held for the benefit of Lender and beneficiary thereunder in and to the real property described in the Deed of Trust.
IN WITNESS WHEREOF, these presents are executed as of the ___ day of February, 2011.
BANK OF AMERICA, NA, a national banking association By: ____________________________________ Name: __________________________________ Its: ___________________________________ BENEFICIARY STATE OF ______________ ) ) ss. County of______________ ) This instrument was acknowledged before me on _______________, 2011, by _______________________, the ____________ of Bank of America, a national banking association, on behalf of thereof. __________________________________ Notary Public My Commission Expires: _________________________