Opinion
Civ. No. 12-189-TC
02-08-2012
RANDY L. JUDY and JEANNE K. JUDY, Plaintiffs, v. THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE CERTIFICATE ALTERNATIVE LOAN TRUST 2007-16CB MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-16CB and RECONTRUST COMPANY, NA, Defendants.
TEMPORARY RESTRAINING ORDER
AIKEN, Chief Judge:
Before the court is plaintiffs' Ex Parte Motion for Temporary Restraining Order (doc. 3). Plaintiffs contend that a non-judicial foreclosure of their residence located at 420 Greenhill Drive, Roseburg, Oregon is scheduled to occur on February 13, 2012. Pursuant to Fed. R. Civ. P. 65(b) and upon review of the Complaint
THE COURT FINDS that plaintiffs have raised serious questions with respect to the merits of their claims, in that defendants allegedly have not complied with the legal requirements for valid non-judicial foreclosure under Oregon law, and that certain assignments of interest and appointments have not been recorded or are otherwise void pursuant to Oregon law and the applicable Pooling and Servicing Agreement; and
THE COURT FURTHER FINDS that plaintiffs likely will suffer irreparable harm if the non-judicial foreclosure of their residential property and home is allowed to proceed and that the balance of hardships tips in their favor, given that defendants may have other remedies available to them, such as judicial foreclosure, and will have the opportunity to establish their right to foreclose in this action; and
THE COURT FURTHER FINDS that the underlying legal issues cannot be resolved before the non-judicial foreclosure sale will occur or before defendants can be heard, and that the issuance of the temporary restraining order is in the public interest; and
THE COURT FURTHER FINDS that no security shall be required to support issuance of this order pursuant to Fed. R. Civ. P. 65(c), finding that plaintiffs are of limited means and no security is proper in these circumstances.
Accordingly, IT IS HEREBY ORDERED that plaintiffs' Ex Parte Motion for Temporary Restraining Order (doc. 3) is GRANTED. Pursuant to Fed. R. Civ. P. 65(d), defendants, their officers, agents, employees, attorneys, and other persons in active concert or participation with defendant, are RESTRAINED and ENJOINED from conducting a non-judicial foreclosure sale of the property commonly known as 420 Greenhill Drive, Roseburg, Oregon. This order shall expire at 5:00 p.m. on Wednesday, February 22, 2012, unless further extended by the court pursuant to Fed. R. Civ. P. 65(b)(2).
IT IS FURTHER ORDERED that the parties shall appear before this court by telephone on Wednesday, February 22, 2012 at 9:30 a.m., and defendants shall show cause, if any, why this restraining order should not be continued during the pendency of this action as a preliminary injunction. The court shall initiate the call. IT IS SO ORDERED.
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Ann Aiken
United States District Judge