FORECLOSURE DEFENSE SEMINAR WEBSITE ABOUT TO LAUNCH; CALIFORNIA APPEALS COURT UPHOLDS HOMEOWNERS’ RIGHT TO SUE FOR WRONGFUL FORECLOSURE WHERE ASSIGNMENT IS VOID

May 21, 2016

Jeff Barnes, Esq. of W.J. Barnes, P.A. and securitization/residential mortgage lending expert Richard Kahn have taken the next step toward the initiation of their Foreclosure Defense Seminar series by establishing a website and developing a seminar programs. The seminars are open to attorneys, paralegals, and homeowners, and feature discounts for early registration. The website address will be announced shortly.

The California Court of Appeals for the 4th Appellate District has issued an opinion which permits a homeowner to sue for wrongful foreclosure when the foreclosure is instituted by a non-party and where the assignment is defective. The case is styled Sciarratta v. U.S. Bank National Association, etc., No. D069439 (22 page opinion issued May 18, 2016), which reversed the trial court’s sustaining of the Defendants’ demurrer (CA equivalent to a motion to dismiss) without leave to amend the Complaint. The homeowner is represented by Stephen F. Lopez, Esq. Dan Gyurec, foreclosure litigation paralegal for the Lopez Firm, is a long-time member of FDN and has attended several of Mr. Barnes’ prior foreclosure defense seminars, and brought this opinion to our attention.

The Court found that “the void assignment is the proximate cause of actual injury and that is all that is required to be alleged to satisfy the element of prejudice or harm in a wrongful foreclosure cause of action.” Citing the recent Yvanova decision from the California Supreme Court, the Sciarratta court stated: “Banks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank’s deed of trust.” That statement sums up what we have been arguing for years across over 35 states at both the trial and appellate levels and in state and Federal courts. FINALLY, it has been confirmed by two California appellate courts.

The entity claiming to enforce the debt was Deutsche Bank, but the sale was held by Bank of America, which claimed to have inherited the rights to the loan via an assignment from JPMorgan Chase on a Wa-Mu originated loan. There was evidence that Chase had previously assigned the Note and Deed of Trust to Deutsche Bank, yet there were subsequent assignments to BOA by JPM including an alleged “Corrective” assignment.

This case highlights the fraudulent conduct of JPMorgan Chase in attempting to make two assignments of the Note and DOT to two different entities over different periods of time. It also illustrates the fraudulent conduct of BOA in attempting to foreclose on a Note and DOT which BOA should have known had been previously assigned to Deutsche Bank. Incredibly, BOA took the position that the recording of an assignment to Deutsche Bank “does not actually transfer an interest in property; it merely serves as notice that a transfer occurred.” Fortunately, this nonsensical and absurd argument went nowhere but being rejected by the appellate court.

The Defendants also took the position that the later “Corrective Assignment” demonstrated that the beneficial interest had been transferred to BOA, and that Chase had made “procedural errors” on the documents which were later allegedly to have been corrected. These ridiculous arguments were also rejected. The Court held that: “Defendants cannot hijack Sciarratta’s first amended complaint, delete allegations not to their liking, insert other contrary allegations such as this one about a mere “procedural error”, and contend the resulting pleading they have cobbled together fails to state a cause of action.” Thus, the appellate court made it very clear that banks cannot re-write a homeowner’s case and then take the position that no claim is stated. Bravo to the California 4th Appellate District for giving BOA and JPMorgan Chase a good and hard public spanking which is more than deserved and long overdue.

The Court further held that the foreclosure, which is the identified harm, can be traced directly to the foreclosing entity’s exercise of authority purportedly delegated by the assignment. The court stated that there are strong public policy reasons for this approach, as otherwise, anyone could foreclose on a homeowner because someone has the right to foreclose, and since lenders can avoid the court system entirely through the nonjudicial process, there would be no court oversight whatsoever.

Hats off to Mr. Lopez for his efforts in obtaining this decision, and kudos to the California 4th Appellate District for seeing through the mindless and spurious “arguments” of the banksters. A copy of this incredibly rich opinion is available upon e-mail request.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

NOTICE OF UPCOMING FORECLOSURE DEFENSE SEMINARS

May 17, 2016

Jeff Barnes, Esq. of W. J. Barnes, P.A. and Richard Kahn are in the process of putting together all-day foreclosure defense seminars which will carry CLE credits for attorneys who attend. The seminars will be open to anyone and will include written materials from both Mr. Barnes and Mr. Kahn.

Topics to be covered include initial case analysis, identification of issues, the role of MERS, securitization issues, discovery, defense of dispositive motions (e.g. Motions to Dismiss and Motions for Summary Judgment); rescission, and issues in mediation and settlement.

Mr. Kahn is the former National Product Manager for Merrill Lynch’s mortgage-backed securities division on Wall Street, and has written and lectured extensively on securitization matters. He has been qualified as an expert in mortgage foreclosure cases in numerous states and also many counties in Florida. Mr. Barnes’ credentials are listed on the “About Us” link on this website.

The seminars will be held on Fridays beginning at 9:00 a.m. and concluding at 5:00 p.m., and are currently planned to be held in Miami, Tampa, Orlando, and Jacksonville, Florida. Future seminars, which will also involve bankruptcy issues, are being planned for Denver, Colorado; Portland, Oregon; and Seattle, Washington.

More details and registration materials will be forthcoming shortly.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

COMMENDATION AND CLARIFICATION

May 16, 2016

We received the following accolade last Friday night, which was directed to Mr. Barnes:“I want you to know that not bringing you into this fight is like someone knowingly committing suicide rather than standing up and fight. I am not ready to hang myself.”  We sincerely appreciate that commendation, which came to us unsolicited.

That being said, there has been some recent confusion as to what the FDN network attorneys do, including Mr. Barnes’ Firm. We are litigators: our mission statement and goal is to challenge the “banks” and servicers on as many fronts as possible at both the trial and appellate levels in both state and Federal courts, and to do whatever we can to accomplish the client’s realistic goals and objectives within the bounds of the law while continuing to explore new theories of defense (and, in certain instances, recovery of damages).

We do not “do” loan mods, short sales, or bankruptcies, although such options may come up during the course of litigation (e.g. in the context of a mediation or if a bankruptcy filing is deemed necessary under certain circumstances, in which case we know of bankruptcy attorneys who we work with and can refer). The reason why we are publishing this is that we have had many inquiries lately along the lines of “we want to retain your Firm to do a loan mod”, or “we want your Firm to help us with a short sale”, or “I am in bankruptcy and need your help”. Although we do sometimes become involved with, for example, defense of proofs of claim or opposing motions for relief from stay within a bankruptcy involving foreclosure issues, or defending foreclosure proceedings outside of the bankruptcy court if stay relief is granted, the core bankruptcy should be handled by an attorney who is an experienced bankruptcy practitioner who regularly handles proceedings under Chapter 7, 11, and 13 of the Bankruptcy Code.

There are many qualified and experienced practitioners who do specialize in the loan modification process and other “loss mitigation” options (such as short sales). Although we may be called upon, during the course of litigation, to assist with such endeavors, we do not solicit or seek to have potential clients retain our Firm for such endeavors.

We hope this clarifies what our network does for homeowners, and we will continue to assist homeowners.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

MOTION TO DISMISS NASH-BASED COMPLAINT DENIED IN FT. MYERS, FLORIDA; INCREDIBLE DECISION FROM MIAMI, FLORIDA HOLDING THAT FAILURE TO DEMONSTRATE ALL INTERIM TRANSFERS IN A SECURITIZATION WAS FATAL AND THAT THE NOTE IS NOT A NEGOTIABLE INSTRUMENT

May 4, 2016

On Monday, May 2, 2016, a Lee County (Ft. Myers) Florida Circuit Judge denied a Motion to Dismiss filed by Bank of America and MERS which sought to dismiss a homeowner’s pre-emptive action for Declaratory Relief, Equitable Estoppel, Unjust Enrichment, Violations of Florida lending statutes, and violations of the Florida Unfair and Deceptive Trade Practices Act. Jeff Barnes, Esq. represents the homeowner and argued the matter in court on Monday.

The Complaint seeks relief based on the findings in the Nash and Dimant decisions which voided mortgage loans involving the non-existent America’s Wholesale Lender. Both cases found that AWL was never incorporated as represented in the loan documents and thus the loans were unenforceable. The Nash Court ordered the return of all monies paid by the homeowners on the alleged loan. Both Courts held that the homeowners were the prevailing parties for purposes of seeking their attorneys’ fees against the foreclosing parties.

Separately, a Miami-Dade County, Florida Circuit Judge has issued an incredible, 17-page decision in the matter of HSBC Bank, N.A. as Trustee etc. v. Buset, Miami-Dade County, Florida Case No. 12-38811-CA-01. The Court’s Order, which granted the homeowners’ motion for involuntary dismissal and ordered HSBC to show cause why it should not be sanctioned, was issued last week (on April 26, 2016), and finally debunks several myths and misconceptions which have been perpetrated upon the courts by “bank” and servicer attorneys for years.

We thank several of our dedicated followers for sending this decision to us. The Court’s findings are meticulous and hold, among other things, that:

(a)  prior servicer records were not admissible;

(b)  the undated endorsement failed to comply with the PSA;

(c)  the chain of interim endorsements required by the PSA were missing and thus any alleged transfer of the loan was defective;

(d)  the MERS assignment was void as it was executed years after the original lender (Fremont) filed for bankruptcy; and, perhaps most importantly,

(e)  the Note is not a negotiable instrument (citing numerous facts within the mortgage to demonstrate this, in addition to missing facts in the Note).

This decision is groundbreaking, and along with the Nash and Dimant decisions, show that Florida is the national leader in not only analyzing the real issues in foreclosure cases, but also exposing many of the myths which have been perpetrated upon the courts by the “banks” and “servicers” for years.

Bravo to Miami-Dade Circuit Judge Beatrice Butchko for taking the time and effort to issue this decision on issues which we have been arguing for years, but which Judge Butchko finally found to be true. A copy of the decision is available by e-mail request to us.

Jeff Barnes, Esq., www.ForeclosureDefensenationWide.com

 

WESTNORTHWEST LAW ALLIANCE ANNOUNCES MULTI-FACETED REPRESENTATION IN COLORADO, MONTANA, OREGON, AND WASHINGTON

April 26, 2016

Four attorneys who have worked within the FDN network have formed the WestNorthWest Law Alliance to handle numerous areas of law practice in the states of Colorado, Montana, Oregon, and Washington. The members are:

Jeff Barnes, Esq.: Mr. Barnes has spent 28 years practicing in the area of civil litigation including business disputes, contract litigation, real estate litigation, limited partnership tax shelter syndication litigation, and appeals in State and Federal courts involving many issues including statutory construction and interpretation. He is licensed in Florida and Colorado, and is also a member of the United States Courts of Appeals for the Third, Sixth, Tenth, and Eleventh Circuits where he has prosecuted appeals. Mr. Barnes has worked closely with WNW attorneys Edward Levy, Elizabeth Lemoine, and Eric Hummel for over 6 years and continues to do so in the area of foreclosure defense and appeals.

Eric Hummel, Esq.:  Mr. Hummel is licensed in Montana and is also a substitute Judge for Whitefish, Columbia Falls, and Flathead County Justice courts. He practices civil litigation in state and Federal courts in Montana, and continues to work with Mr. Barnes in the area of foreclosure defense. Mr. Hummel was co-counsel with Mr. Barnes in their victory in the Supreme Court of Montana in the case of Pilgeram v. Greenpoint where they established that MERS is not the beneficiary in a Deed of Trust, which involved the construction of a Montana state statute as to what constitutes a “beneficiary” for purposes of the Small Tract Financing Act (Montana’s non-judicial foreclosure statute).

Elizabeth Lemoine, Esq.: Mrs. Lemoine is licensed in Oregon and Washington where she practices labor and employment law, business law, contract disputes, and civil litigation in state and Federal courts as well as working with Mr. Barnes in the area of foreclosure defense. She was co-counsel with Mr. Barnes in their victories in the Oregon Court of Appeals and the Supreme Court of Oregon in the case of Niday v. GMAC Mortgage which held that MERS is not the “beneficiary” of a Deed of Trust, which case also, like the Pilgeram case in Montana, involved the construction and interpretation of non-judicial foreclosure statutes.

Edward Levy, Esq.: Mr. Levy is licensed in the State of Colorado and practices Bankruptcy law at both the consumer and commercial levels. His practice involves Chapter 7, 11, and 13 proceedings and contested and adversary proceedings and appeals including those before the Bankruptcy Appellate Panel. He also practices criminal defense in the state and Federal courts in cases involving felony, misdemeanor, white collar, and financial crimes, and also practices in the areas of debtor and creditor rights. Mr. Levy has worked with Mr. Barnes representing clients who are involved with foreclosure issues including bankruptcy matters.

WNW’s mission is to provide diligent and comprehensive representation to clients in Colorado, Montana, Oregon, and Washington at the trial and appellate levels in both state and Federal courts. Inquiries may be made to jeff@wjbarneslaw.com at this time. WNW will be establishing its own contact links shortly.

SUMMARY JUDGMENT DENIED IN US BANK SECURITIZATION CASE INVOLVING ALLONGE ISSUES

April 20, 2016

This morning, an Orange County (Orlando) Florida Circuit Judge denied a Motion for Summary Judgment filed by US Bank as the claimed securitization trustee. Jeff Barnes, Esq. represents the homeowners. Mr. Barnes prepared the 20-page Response and Opposition to the MSJ and argued the matter in court today.

The case is a “do-over”. The initial foreclosure case, which was filed by the Law Offices of David J. Stern, was dismissed due to the plaintiff’s failure to appear for a dispositive motion hearing. The refiled case involves issues relating to standing, the lack of compliance with Florida’s law as to allonges, inconsistent positions taken in the documents, and setoff issues as well.

There is also a potential statute of limitations issue depending on the ultimate ruling of the Supreme Court of Florida in the Beauvais case, which pits the decision of the Third District Court of Appeal against that of the Fourth DCA: the 3d held that the statute of limitations begins to run as of the date that the foreclosing party accelerates the loan balance due to a claimed default, while the 4th DCA took the position that the statute of limitations begins to run as of the date that the last payment was due on the loan and not when the balance was accelerated.

As Orlando is within the 5th DCA, neither the 3d nor the 4th DCA positions are binding on the Orlando Circuit Court, and in any event, the matter remains in the Supreme Court of Florida on “conflict certification” meaning that the Supreme Court will issue an opinion, at some point, as to what the triggering event is for statute of limitations purposes..

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

SUMMARY JUDGMENT DENIED TO CITIMORTGAGE ON CLAIM TO INSURANCE PROCEEDS

April 18, 2016

Today, an Okaloosa County, Florida Circuit Judge denied a Motion for Summary Judgment filed by Citimortgage, Inc. which claimed entitlement to insurance proceeds issued in connection with a claim for damage to the homeowners’ property. Jeff Barnes, Esq. represents the homeowners and argued the matter this afternoon in a hearing lasting almost an hour.

The homeowners’ property was damaged by water. A claim was made to the insurer, which issued checks for repairs payable jointly to the homeowners, Bank of America (which was on the second mortgage), and Citi. BOA agreed to remove its name from the checks so that the monies could be given to contractors to effect the needed repairs. Citi refused to release its name from the checks.

Citi claims to be the downline successor to the original lender. Citi had filed a foreclosure action and maintained that it was the “Lender” under the Note and Mortgage although that issue remains disputed. The damage occurred during the course of the foreclosure case, which remains pending.

Citi claimed that there was no issue that it had the right to control the insurance proceeds. The Judge denied the motion, stating that the Motion itself, when viewed against the filings in the matter, raised issues which precluded summary judgment. The case will shortly be scheduled for trial on both the foreclosure and insurance (interpleader) cases, which have been consolidated.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

CORRECTION/AMENDMENT TO PRIOR POST OF FEBRUARY 12, 2016

April 13, 2016

On February 12, 2016, we posted a matter involving Marie McDonnell, who prepared an Affidavit which was used in the matter the subject of that post. Ms. McDonnell is the principal of McDonnell Analytics.

Neither W.J. Barnes, P.A. nor Jeff Barnes, Esq. have any association with either Ms. McDonnell or McDonnell Analytics of any type whatsoever (professional or otherwise), and Ms. McDonnell and McDonnell Analytics are not part of, associated with, or members of FDN.

We apologize for any misunderstanding that may have been the result of the matters in our post of February 12.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FANNIE MAE ADMITS THAT MERS HAS NO BENEFICIAL INTEREST IN THE MORTGAGE EVEN WHEN MERS IS NAMED AS NOMINEE FOR THE BENEFICIARY

March 28, 2016

Fannie Mae (FNMA) admits in its August 30, 2015 Selling Guide, Part B8-7-01, that “Even when MERS is named as the nominee for the beneficiary in the security instrument, it will have no beneficial interest in the mortgage”. Fannie has stood by this position since at least 2007, when it made the same statement in its Selling Guide for 2007, Part IV, page 103, “Naming MERS as Nominee for Beneficiary”.

How then could any foreclosure involving Fannie ever take the position that MERS could act as the beneficiary for purposes of, among other things, executing an Assignment of a Deed of Trust or appointing a Substitute Trustee, which acts may only be undertaken and executed by the true beneficiary?

Jeff Barnes, Esq., www.ForeclosureDefenseNtionwide.com

Jeff Barnes, Esq. admitted PHV in Nebraska and pending admission in Connecticut

March 25, 2016

Jeff Barnes, Esq. has been admitted pro hac vice in connection with a foreclosure case in Lincoln, Lancaster County, Nebraska. The case involves issues relating to MERS and the alleged standing of the Plaintiff to foreclose. As those of you who follow this website know, the decision in MERS v. Nebraska Dept. of Banking and Finance was one of the seminal cases establishing what MERS is and is not, and was the case where MERS’ counsel admitted to the Supreme Court of Nebraska that MERS does not own or hold promissory notes, does not lend money, does not extend credit, etc.

Mr. Barnes is also pending admission PHV in Stamford, Connecticut in connection with a foreclosure matter involving Wells Fargo as the claimed trustee of a securitization trust, the defunct American Brokers’ Conduit, and issues of alleged transfer of the loan from the originating lender. Mr. Barnes is scheduled to argue a Motion to dismiss the foreclosure with prejudice at a hearing in the Stamford Court on April 7, 2016.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com