VICTORY IN MONTANA: PRELIMINARY INJUNCTION ISSUED AGAINST MERS, RECONTRUST, AND COUNTRYWIDE

VICTORY IN MONTANA: PRELIMINARY INJUNCTION ISSUED AGAINST MERS, RECONTRUST, AND COUNTRYWIDE Today, May 25, 2010, 4 hours ago | Jeff Barnes May 25, 2010

A Montana Circuit Judge entered a preliminary injunction yesterday enjoining MERS, Recontrust, and Countrywide from undertaking any action to sell, encumber, or transfer the borrower’s property during the pendency of the borrower’s lawsuit challenging a non-judicial foreclosure. The Notice of Trustee’s Sale fraudulently represented that there was an “obligation owed to MERS” when there was never any such obligation, and there is no evidence of any lawful assignment of either the Note or the Deed of Trust from the original lender to anyone. None of the Defendants appeared for the hearing.

The borrower had previously obtained a Temporary Restraining Order which stopped the Trustee’s Sale. Yesterday’s ruling converted the TRO into a preliminary injunction for the duration of the litigation.

This is FDN’s second victory in Montana. The borrowers in both cases are represented by Jeff Barnes, Esq., assisted by local Montana counsel Eric Hummel, Esq.

Trustee May Not Delegate But Usually Does

Most “Trustees” or Substitute Trustees get a package from some unknown source with everything already prepared and instructions to proceed. That is the exact opposite of the protections intended by the legislature in this statute under Arizona law. Your state is probably the same.

33-803.01. Trustee of trust deed; delegation of duties

A. A trustee shall not delegate the following duties:

1. The preparation and execution of any of the following:

(a) The notice of trustee sale.

(b) The cancellation of notice of sale.

(c) The trustee’s deed upon sale.

2. The receipt and response to requests for reinstatement or payoff amounts.

B. This section does not prohibit the trustee from using clerical or office staff employed by the trustee and under the trustee’s direct and immediate supervision to assist in the duties prescribed by subsection A.

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