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Order Granting TRO 1

Order Granting TRO 1

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Published by DinSFLA

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Published by: DinSFLA on Jul 13, 2011
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10/06/2013

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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIASOUTHERN DIVISIONMICHAEL M. CARNEY,Plaintiff,vs.BANK OF AMERICACORPORATION, ET AL.Defendants.))))))))))))))))))Case No.: SACV 11-00571-CJC(MLGx) ORDER GRANTING TEMPORARYSTAY OF FORECLOSURE SALE ANDORDER TO SHOW CAUSEREGARDING A PRELIMINARYINJUNCTIONINTRODUCTION & BACKGROUND
Pro se
Plaintiff Michael M. Carney brings this suit against Defendants Bank of America, N.A. (erroneously sued as Bank of America Corporation), BAC Home LoansServicing, LP (erroneously sued as Countrywide Financial Corporation dba BAC HomeLoans Servicing), Countrywide Home Loans, Inc., and ReconTrust Co., N.A.(“ReconTrust”) (collectively “Defendants”) and BondCorp Realty Services, Inc.
Case 8:11-cv-00571-CJC -MLG Document 28 Filed 07/07/11 Page 1 of 4 Page ID #:512
 
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(“BondCorp”), US Bank, N.A., and Mortgage Electronic Registration Systems, Inc.(“MERS”) arising from Defendants’ imminent foreclosure sale of Mr. Carney’s home.Mr. Carney filed his suit in federal court on April 13, 2011 alleging claims related to his2005 mortgage that is in default including violation of the Truth in Lending Act, violationof the Real Estate Settlement Procedures Act, and intentional misrepresentation.On May 20, 2011, Defendants moved to dismiss Mr. Carney’s Complaint underFederal Rule of Civil Procedure 12(b)(6). Mr. Carney did not submit an opposition toDefendants’ motion to dismiss, but on June 1, 2011 he filed an
ex parte
application for atemporary restraining order and order to show cause regarding a preliminary injunction toenjoin Defendants from conducting a trustee’s sale of his home.
See
Dkt. # 13. Afterconsidering Defendants’ Opposition and Mr. Carney’s Reply, the Court denied Mr.Carney’s
ex parte
application on June 7, 2011.
See
Dkt. # 17.After Mr. Carney failed to oppose Defendants’ motion to dismiss, the Courtgranted that motion with leave to amend on June 17, 2011.
See
Dkt. # 18. On June 27,2011, Mr. Carney timely filed his verified First Amended Complaint (“FAC”).
See
Dkt.# 20. On July 5, 2011, Mr. Carney filed his second
ex parte
application for a temporaryrestraining order and for an order to show cause why Defendants should not bepreliminarily enjoined from conducting a trustee’s sale of his home. For the reasonsexplained below, a temporary stay of the foreclosure is necessary so a more expandedevidentiary record can be created to determine whether the purported trustee has the legalauthority to conduct the foreclosure sale and whether the current beneficiary hasapproved of the foreclosure sale.
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  // 
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Having read and considered the papers presented by the parties, the Court finds this matter appropriatefor disposition without a hearing.
See
Fed. R. Civ. P. 78; Local Rule 7-15.
Case 8:11-cv-00571-CJC -MLG Document 28 Filed 07/07/11 Page 2 of 4 Page ID #:513
 
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ANALYSIS
Mr. Carney has made a showing that ReconTrust might not be the proper trusteewith legal authority to conduct the trustee’s sale scheduled for July 11, 2011. The issue iswhether MERS properly substituted ReconTrust as trustee in place of First AmericanTitle Company prior to MERS assigning its beneficial interest in the deed of trust to USBank, and whether US Bank has approved of the foreclosure sale.
See
FAC Ex. 9(Corporation Assignment of Deed of Trust assigning MERS’ beneficial interest in thedeed of trust to US Bank dated June 24, 2010 and recorded July 7, 2010);
id.
Ex. 6-2(Substitution of Trustee listing MERS as the beneficiary and ReconTrust as the newtrustee but not indicating the date of execution),
id.
Ex. 6-3 (Affidavit of Mailing forSubstitution of Trustee by Code dated May 19, 2011);
id.
Ex. 6-1 (Notice of Trustee’sSale listing ReconTrust as trustee and June 9, 2011 sale date);
id.
¶ 72 (verified FACalleging that no properly executed substitution of trustee was recorded prior toReconTrust filing a Notice of Trustee’s Sale on October 29, 2010). Defendants haveasserted in their opposition to Mr. Carney’s
ex parte
application that “MERS substitutedReconTrust as trustee in place of First American Title Company – and this substitutionwas recorded,” Opp’n at 5, but they have not produced the records indicating that thissubstitution properly occurred during the time period that MERS was the beneficiary.
CONCLUSION
 For the foregoing reasons, Defendant ReconTrust and each of its principals, agents,representatives, and assigns are hereby TEMPORARILY RESTRAINED ANDENJOINED from selling, scheduling to sell or transfer, attempting to sell or transfer, orcausing to be sold or transferred, prior to the date of the order to show cause set forthbelow, the subject property, which is located at 241 Rochester Street in Costa Mesa,California 92627.
Case 8:11-cv-00571-CJC -MLG Document 28 Filed 07/07/11 Page 3 of 4 Page ID #:514

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