Piersall v. MILA, MERS, eTitle Insurance, et al.
N/AOUTCOME: Wasatch Advocates secured the first-ever MERS-related foreclosure injunction in the state of Utah.
On September 3, 2010, Wasatch Advocates stopped a foreclosure sale which would have put a family of six out onto the street. In Piersall v. MILA, MERS, eTitle Insurance, et al., Attorney Abe Bates succ ... essfully argued for and won a Temporary Restraining Order (TRO) halting the foreclosure sale as it was happening on the courthouse steps. Abe argued that the documents which the Mortgage Electronic Registration System (MERS) had recorded to enable the foreclosure were void under state law, and that the Piersall family had been misled by their mortgage servicer regarding their loan modification applications. On September 10, after MERS recorded a three-way assignment of the Piersalls' mortgage between four different banks - all on the same day! - , the Court held an evidentiary hearing and, after hearing the evidence presented by Wasatch Advocates, granted a Preliminary Injunction halting any future foreclosure sale until jury trial, ruling that: (1) it clearly appears from the specific facts from the evidentiary hearing that immediate and irreparable injury will result to Plaintiffs from the loss of the family home that would result from the recording of a trustee's deed terminating their ownership interest in the property; (2) the threatened injury to Plaintiffs outweighs the damage that may result to Defendants by issuance of this injunction, when the Plaintiffs stand to lose their family home and Defendants will suffer only a temporary delay in any transfer of ownership; (3) the injunction is not adverse to the public interest when the home-owning public is protected by strict enforcement of Utah's non-judicial foreclosure statute, which requires that only the beneficiary of record to a trust deed may exercise the non-judicial power of sale; and (4) Plaintiffs' claim for declaratory judgment that Defendants MERS, Franklin, Huntington and eTitle lack proper authority, pursuant to [Utah's non-judicial foreclosure statute] presents serious issues on the merits which should be the subject of further litigation. Defendants are HEREBY ENJOINED until further notice from recording any trustee's deed terminating Plaintiffs' ownership on the property at issue in this litigation." In Piersall, Wasatch Advocates secured the first-ever MERS-related foreclosure injunction in the state of Utah. See Third District Court Case No. 100916364: Complaint, Exhibits, TRO Memo, TRO and Injunction Orders.
