SUPERIOR COURT OF
, ) Case No.: 09-
ACCREDITED HOME LENDERS,
INC., ) EMERGENCY MOTION FOR
requests the emergency issuance of a Temporary
Restraining Order, and as grounds for said requests states:
filed an action for declaratory, injunctive, violations of the Consumer
Protection Act, and other relief which is incorporated herein by reference.
Plaintiff is and was at all times material
hereto the legal owner of residential real property located at ,
(hereafter the “Property”).
obtained a Writ of Restitution (copy attached and incorporated herein by
reference) as a result of having violated RCW 61.24.040(1)(b)(i), which
requires that a party seeking to foreclose a deed of trust against a borrower
both record a notice, in the form described in RCW 61.24.040(1)(f), in the
office of the auditor of each county in which the deed of trust is recorded and
to serve, at least ninety (90) days before the trustee’s sale by both
first-class and either certified or registered mail, return receipt requested,
a copy of the notice of sale upon the borrower, having so violated the statute
by causing a foreclosure sale of the Property to be conducted less than four
(4) full days after obtaining stay relief in the Plaintiff’s bankruptcy
proceeding and without ever serving Plaintiff with a copy of any Notice of
Trustee’s Sale at any time before said sale (and, in further violation of RCW
61.24.040, without serving said notice 90 days before the sale date).
The Writ of
Restitution has been served upon the tenants residing at the Property, who are
scheduled to be evicted from the Property on the evening of Thursday, January
Pursuant to the Affidavit of in support hereof and filed
simultaneously herewith (and incorporated herein by reference), the tenants are
a young single woman with a two (2) year old son; a single man with a medical
disability; another single man with a substance abuse disorder who cannot
drive; and another single man who is facing financial hardship.
As such, an emergency
Temporary Restraining Order needs to be issued forthwith to prevent the
wrongful eviction of these tenants which eviction is premised on a Writ of
Restitution which has been obtained by false, deceptive, and unfair practices
and through violation of the Trustee’s Sale Statute, RCW sec. 61.24.040.
Temporary Restraining Order is also needed to prevent the wrongful transfer of
possession of Plaintiff’s property to the Defendant AHL, title to which was
acquired in violation of applicable laws.
circumstances where the Defendant has intentionally violated Washington
Statutory law for the express purpose of wrongfully acquiring the Plaintiff’s
real property with the specific intent to profit from such wrongful conduct and
where there is no harm to the Defendant in restraining it from profiting from
its unlawful actions, no bond should be required of Plaintiff as a precondition
to the granting of the relief requested herein.
made a claim in the Complaint for Declaratory Relief. RCW 7.24.190 provides
that the court, in its discretion and upon such conditions and with or without
such bond or other security as it deems necessary and proper, may stay any
ruling, order, or any other court proceedings and may restrain all parties
involved in order to secure the benefits and preserve and protect the rights of
all parties to the court proceedings.
10. As set forth
above, Plaintiff’s rights and legal status as to the Property have been
affected by the Defendant AHL’s intentional and express violations of RCW
61.24.040, which has resulted in the Property being wrongfully foreclosed and a
Writ of Restitution issued to Defendant AHL based on an improper foreclosure
which has in turn resulted in a wrongful eviction proceeding being initiated.
11. As Defendant
AHL is presumably intending, after execution of the Writ of Restitution, to
sell or convey the Property which was wrongfully acquired by said Defendant in
violation of applicable laws, Plaintiff requests that this Court, pursuant to
RCW 7.24.190, enjoin Defendant AHL from any such sale or conveyance, and that
this Court further enjoin all proceedings incident to the issuance of the Writ
of Restitution in order to secure the benefits and preserve and protect the
rights of all parties to these proceedings.
WHEREFORE, Plaintiff requests that this Court
immediately enter a Temporary Restraining Order immediately staying the
execution of the Writ of Restitution and any other post-sale proceedings
relating to the issuance of the Writ of Restitution including any eviction
proceedings pending the final disposition of the main action for the reasons
set forth herein, and for any other and further relief which is just and
DATED THIS 29th DAY OF JANUARY, 2009.
W. Jeff Barnes, Esq.
(counsel PHV) Local Counsel for
W. J. Barnes, P.A.
Boca Raton, Florida 33432
Telephone: (561) 864-1067