Memorandum in Support of Motion to Stay Foreclosure Sale (Ohio)


LASALLE NATIONAL BANK AS TRUSTEE                  )              CASE NO. 2005-CV-03869
FOR CERTIFICATE HOLDERS OF BEAR        )           Judge Durkin
2004-HE5,                                                              )          DEFENDANTS’
                                      Plaintiff                                   ) MOTION FOR STAY OF 
v.                                                                                 )     FORECLOSURE SALE PENDING     
                                                                                    )      DETERMINATION OF FEDERAL    
Defendant, et al,                                   )      ACTION FOR VIOLATIONS OF
                                                                            )      FEDERAL TRUTH-IN-LENDING
                                  Defendants.                       )     ACT, FEDERAL REAL ESTATE                  
                                                                            )   SETTLEMENT PROCEDURES ACT,
______________________________________)     CIVIL RICO, AND OTHER RELIEF
            Defendants, through undersigned counsel, file this Memorandum in Support of their Motion to Stay Foreclosure Sale Pending Determination of [their] Federal action for Violations of the Federal Truth-In-Lending Act, the Federal Real Estate Settlement Procedures Act, Civil RICO under the Ohio RICO statute, and for other relief, and as grounds state as follows:
1.        This Court previously entered an Order which provides for a foreclosure sale of the Plaintiffs’ primary residence to take place on Tuesday, June 24, 2008.
2.        Plaintiffs have filed an action in the United States District Court for the Northern District of Ohio, Eastern Division (copy of filed Complaint attached hereto and incorporated herein by reference) sounding in violations of the Federal Truth-In-Lending Act, the Federal Real Estate Settlement Procedures Act, Civil RICO under the Ohio RICO statute, and other relief.
3.        Pursuant to the Ohio Civil RICO statute (ORC sec. 2929.34), the Court is authorized, in connection with the prosecution of the civil RICO claim, to grant injunctive relief without the necessity of a showing of special or irreparable injury to the plaintiff, and that pending the determination of the civil RICO action that the court may issue a Temporary Restraining Order or Temporary Injunction upon showing of significant injury to the plaintiff (ORC sec. 2929.34(D)).
4.        As set forth in the attached Complaint, Plaintiffs have and continue to suffer significant and ongoing injuries and damages, including the loss of their home, if emergency injunctive relief is not granted.
5.        The Ohio Civil RICO statute also provides, as part of the relief afforded to a plaintiff, that the defendant’s interest in any real property is to be divested when said interest has been acquired through a pattern of corrupt activity. ORC sec. 2929.34(B)(1) and 2929.32(A)(2).
6.        As set forth in the attached Complaint, the Defendants named in the Federal action acquired an interest in the Plaintiffs’ residential real property through a pattern of corrupt conduct and activity.
7.        Defendants thus request that this Court immediately grant a stay of all further proceedings in or arising out of this action including a stay of the foreclosure sale pending the full determination of the Federal action.
8.        The granting of a stay pending the litigation of rights in another forum has been previously approved by the Ohio Legislature and case law in connection with the granting of a stay of state court proceedings pending arbitration. ORC sec. 2711.02; Harlament v. Fishcher Attached Homes, Ltd., 2003 OH 694, OHCA 2003, citing Harper v. J.D. Byrider of Canton, 148 Ohio App.3d 122, 2002-Ohio-2657, 772 N.E. 2d 190.
9.        The same rationale, purpose, and grounds for the stay of state court proceedings pending arbitration are applicable here, where Plaintiffs have challenged the legality of the entire underlying loan process and have sought relief under multiple Federal Statutes, State Statutes, and common law, including the Ohio RICO Statute which provides for injunctive relief pending determination of the RICO claim and for the relief of divesting a defendant from its interest in real property if that interest was found to have been acquired by a pattern of corrupt conduct.
10.    If the instant Motion is not granted, Plaintiffs will suffer irreparable injury, including in the form of the loss of their home and eviction therefrom.
11.   Any alleged prejudice to the Plaintiff (a bank Trustee for a group of unnamed holders of investment securities who may in fact not even have legal title to the Plaintiffs’ mortgage and who, in all likelihood, never had standing to institute the foreclosure proceeding herein ab initio) with the granting of this Motion is greatly outweighed by the severe prejudice to the Defendants with the denial of this Motion.
12.   This Motion is being filed in good faith based on Federal and State law legal grounds for relief and not for any purpose of delay.
13.    Under the circumstances where the purported Plaintiff in this action may not have (and may never have had) actual legal standing to bring the foreclosure in the first instance and may in fact not be the true or real party in interest at all, no bond should be required as a prerequisite to this Court’s granting of a stay.
WHEREFORE, Plaintiffs respectfully request that this Court grant the relief requested herein for the reasons set forth, and for any other and further relief which is just and proper.                                                                                
                                                                                            Respectfully submitted,
       W. Jeff Barnes                                                             Maurus G. Malvasi 
      (counsel to seek admission pro hac vice)                    (Ohio Bar No.             )
       W. J. Barnes, P.A.                                                      11 Overhill Road
       1515 North Federal Highway                                      Youngstown, Ohio 44512
       Suite 300                                                                     Telephone: (330) 788-9900
       Boca Raton, Florida 33432                                          Telefax: (513) 793-4400
       Telephone: (561) 864-1067                                         Telefax: (513) 788-9265
       Telefax: (702) 804-8137
                                                                                   Attorneys for Plaintiffs
            THE UNDERSIGNED HEREBY CERTIFIES that a true and correct copy of the foregoing has been forwarded, via U.S. Mail, to Michael L. Wiery, Esq., 5601 Hudson Drive, Hudson, Ohio 44236 on this ___________ day of June, 2008.
                                                                                             Maurus G. Malvasi