UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA - EUREKA
January 9, 2012
CHRISTOPHER GENE LYMAN; JESSICA UNLIMITED HELEN O'DANIEL
M O R T G A G E E L E C T R O N I C
REGISTRATION SERVICES, INC., A DELAWARE CORPORATION; XZVR, INC., A CALIFORNIA CORPORATION; WESTERN PROGRESSIVE, LLC, A DELAWARE LIMITED LIABILITY COMPANY; DEUTSCHE BANK NATIONAL TRUST COMPANY, A TENNESSEE CORPORATION; IXIS REAL ESTATE CAPITAL TRUST 2005-HE-3; SAXON MORTGAGE SERVICES, INC.; OCWEN LOAN SERVICING, LLC; AND DOES 6
THROUGH 1000, INCLUSIVE; DOES 1001 THROUGH 2500, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: The Honorable Nandor J. Vadas Magistrate Judge of the U.S. District Court
[Proposed] PRELIMINARY INJUNCTION
The Court having heard the arguments of the parties, and having reviewed the documents 21 25 and papers on file herein, and good cause appearing therefore, 26 IT IS HEREBY ORDERED that, pending further order of this Court or judgment herein, 27 defendants MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware 28 corporation, erroneously sued herein as MORTGAGE ELECTRONIC REGISTRATION SERVICES, INC.; XZVR, INC., a California corporation; WESTERN PROGRESSIVE, LLC, 2 a Delaware limited liability company; DEUTSCHE BANK NATIONAL TRUST COMPANY, 3 a Tennessee corporation; IXIS REAL ESTATE CAPITAL TRUST 2005-HE-3; SAXON 4 MORTGAGE SERVICES, INC.; OCWEN LOAN SERVICING, LLC and., their agents, 5 employees, servants, and all persons acting under, in concert with or for them are restrained and 6 enjoined from proceeding with a foreclosure on that certain real property commonly known 7 as1956 Clover Drive, Willits, Mendocino County, California which is more specifically described 8 as follows: 9
Block 37, Lot 7, of Tract 86, Brooktrails Vacation Village Subdivision as per map filed August 17, 1966 in Case 2, Drawer 7, Page 1, Mendocino County Records as amended by Map filed August 16, 1967, in Map Case 2, Drawer 7, Page 2;
Excepting and reserving all the water and water rights in, under or flowing over said property or appurtenant thereto;
Excepting and reserving therefrom fifty percent (50%) of all oil, gas and other mineral and hydrocarbon substances below a plane five hundred feet beneath the surface thereof, but without the right of surface entry thereto, as reserved and excepted by the Bank of California, National Association, a National Banking Association.
This preliminary injunction shall remain in effect until April 6, 2012 or further order of 19 this Court whichever first occurs. 20
Plaintiffs shall pay the sum of $1,l38.50 as a condition of the issuance of this preliminary 21 injunction and for a bond; to be paid to an interest bearing Trust Account in care of Plaintiffs' 22 counsel, Christopher J. Neary on or before the 15th day of each month, commencing February 1, 23 2012, which sums shall be held in trust for the legal beneficiary of the underlying Note and Deed 24 of Trust at issue herein on the foregoing described property. Plaintiffs shall further timely pay 25 all taxes, insurance, and utility payments regarding the Property falling due within the time period 26 this injunction is in effect. Counsel shall provide the Court and the parties with a status report 27 regarding the balance of the Trust Account on a monthly basis, which report shall be submitted 28 to the Court on or before the 15th day of each month, commencing on February 15, 2012.
Defendants DEUTSCHE BANK NATIONAL TRUST COMPANY and/or OCWEN LOAN SERVICING, LLC may draw upon the deposited funds at any time upon ten days' written 3 notice to the Court upon agreeing to indemnify Plaintiffs from any damages they might suffer as 4 a result of any other person or entity with a superior right to the claim of Defendant DEUTSCHE 5 BANK NATIONAL TRUST COMPANY as beneficiary making a successful demand for payment 6 of the secured obligation. 7
Funds on deposit in the interest bearing trust account shall be under the control of the Court to be disbursed as the Court may order. 9
In the event that this Preliminary Injunction expires prior to further order of the Court, Plaintiffs may without the requirement of further briefing apply for an extension of this injunction 11 on an ex parte basis. 12
Approved as to form:
HOUSER & ALLISON, APC 18 _____/s/ __________________ 19 JASON K. BOSS Attorneys for Defendants 20 DEUTSCHE BANK NATIONAL TRUST COMPANY, a Tennessee corporation; IXIS REAL ESTATE 21 CAPITAL TRUST 2005-HE-3; OCWEN LOAN SERVICING, LLC 22 23 24
I, CHRISTOPHER J. NEARY, as custodian of the Trust Account into which all monthly 25 payments by Plaintiffs will be deposited in compliance with this order, agree to the terms and 26 conditions of this Order and will comply with its terms and/or any other Order from this Court 27 concerning the funds to be deposited in compliance with this Order. I understand and agree that the 28 funds deposited into the trust account shall remain under the control of the Court pursuant to this Order, and I agree that the funds will not be disbursed to anyone except as directed by written 2 agreement between the Defendants named herein above and Plaintiffs, or the above-entitled Court's 3 Order. 4
I SO AGREE.
NEARY AND O'BRIEN DATED: January 6, 2012 _________/s/________________ 7 CHRISTOPHER J. NEARY Attorneys for Plaintiffs, CHRISTOPHER LYMAN and JESSICA O'DANIEL
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