Bank of America Utah Foreclosures – New Filing May Persuade Judge Waddoups to Set Aside Restraining Order

(St. George, UT) – The Bank of America’s motion for dismissal filed July 2, 2010 in US District Court of Utah may have opened the way for Judge Clark Waddoups to set aside his order halting foreclosures in Utah by ReconTrust Company and remand the case to state court. Attorneys John Christian Barlow and E. Craig Smay, in their plaintiff’s response (below) filed Friday, July 8, 2010 say “the defendant’s motion to dismiss re-opens the issue of preemption of State law which previously arose in the analysis of the courts jurisdiction. There, the court analyzed and relied upon the wrong statute, producing an erroneous conclusion of preemption. That conclusion should now be corrected,” the attorneys said.

“The defendant’s motion to dismiss is based upon claims the plaintiff, Peni Cox of St. george, Utah, lacked a cause of action under Utah Code §16-10a-1501 and 57-1-21 addresses an issue not in dispute,” Barlow said. “ReconTrust Company is permitted to serve as trustee in Utah, but the company is still required to register and have offices in the state along with its competitor state banks, and may not foreclose non-judicially,” according to Barlow and Smay. “Bank of America’s motion to dismiss serves to more clearly show the federal court lacks jurisdiction to set aside the restraining order previously issued by the state court,” Barlow said. The Plaintiff filing cites the federal court’s own decision denying federal jurisdiction. (Jensen-ReconTrust)

The attorneys conclude “the motion by the defendant to dismiss must be denied and the prior order setting aside the state court injunction should be withdrawn and the matter remanded to the state court.”

While, the judge ponders his response to the filing, the plaintiff has moved the case to the 10th Circuit Court of Appeals in Denver…