SUMMARY JUDGMENT DENIED IN TAMPA; FORECLOSURE DEFENSE SEMINARS BEING SCHEDULED FOR FEBRUARY, MARCH, APRIL, AND MAY IN FLORIDA

December 9, 2016

A Hillsborough County (Tampa) Circuit Judge has denied summary judgment in a case involving a WaMu loan origination which (allegedly) passed to JPMorgan Chase following WaMu’s demise and FDIC receivership and (allegedly) notwithstanding WaMu’s Bankruptcy filing the day after it went into receivership. The loan was then (allegedly) sold multiple times to three different entities. Each time the borrower amended his defenses to address a sale of the loan and substitution of Plaintiff, the loan was sold again. The 4th downline transferee, which is a private limited partnership, is now seeking to foreclose. The borrower is represented by Jeff Barnes, Esq., who prepared the formal opposition to the MSJ and argued it this week. The case is now set for trial in February, 2017.

Separately, FDSeminars’ foreclosure defense seminar series will be resuming beginning in February, 2017. The first seminar will be held on Friday, February 3, 2017 in Boca Raton, Florida at 1515 North Federal Highway (Atrium Building). The second seminar will be held in the Miami area on Friday, March 3, 2017. The third and fourth seminars will be held in Tampa and Orlando, Florida. One will be held on April 7, 2017 and the other on a date in early May which is being finalized. Locations will be announced shortly.

Attorneys will receive a minimum of 7 CLE credits. We are in the process of seeking to obtain CLE credits for both general and specific practice areas as well. We will also be videotaping the seminar so that interested parties who cannot physically attend may purchase the seminar in video format.

Details can be found at the website, www.FDSeminars.com.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

NEW MEXICO DISTRICT JUDGE ORDERS DEPOSITION OF BANK OF NEW YORK ON ALLEGED WAIVER OF CONFLICT OF INTEREST

December 2, 2016

A Santa Fe County, New Mexico Judge has ordered the deposition of the representative of Bank of New York who signed an alleged “conflict wavier” which was prepared after the homeowner filed a Motion to Disqualify Plaintiff’s counsel due to a conflict of interest. Jeff Barnes, Esq. represents the homeowner together with local NM counsel Guy Beckley, Esq.

Bank of NY as the alleged trustee of a Countrywide home equity (HEQ) securitization Trust sued the homeowner for foreclosure. Counsel for BNY prepared an assignment which purported to transfer the loan to BNY as the trustee of a different Countrywide securitization trust (an ALT). The law Firm then sued its own client (BNY as Trustee for the HEQ Trust) and sought a default against its own client, doing so without proof of service on its own client, without evidence of a waiver of conflict, and as part of its Motion for Default and Summary Judgment.

The homeowner filed a Motion to Disqualify the law Firm based on the conflict of interest in the Plaintiff’s law Firm suing its own client and seeking a default against its own client in connection with the alleged transfer of the loan from one securitization trust to another. The law Firm thereafter filed an alleged “conflict waiver” signed by a representative of BNY which was not in affidavit form or otherwise authenticated.

At the hearing yesterday, Mr. Barnes requested, at a minimum, that the deposition of the BNY employee who signed the alleged conflict waiver be taken. The Court agreed over the vociferous objection of the attorney from the Plaintiff’s law Firm, and also ordered that the deposition be filed after which time the Court will review the testimony and rule on the disqualification motion

Under New Mexico law, a motion for disqualification must be ruled upon before any other proceedings go forward. Thus, the Plaintiff’s MSJ will not be entertained until the disqualification motion has been decided.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

HOMEOWNERS’ MOTIONS TO AMEND THEIR CLAIMS GRANTED IN HAWAII AND OREGON

November 21, 2016

Motions for leave (permission) to file amended claims against “banks” seeking to foreclose have been granted in cases in Hawaii and Oregon in the last 4 days. The homeowners are represented by Jeff Barnes, Esq. of W. J. Barnes, P.A., together with local counsel in each state.

In the Hawaii case, the homeowners had been proceeding pro se, and HSBC Bank as Trustee for a securitization trust had filed a motion for summary judgment. The homeowners sought leave to amend their Answer and affirmative defenses, which motion was vigorously opposed by HSBC’s counsel (who Mr. Barnes had previously prevailed against by defeating motions filed by that Firm). The Court, after extensive argument, granted the homeowners’ motion last Thursday, which now permits them to advance new theories of defense which Mr. Barnes’ Firm has developed and which have not been previously litigated in Hawaii.

Today, an Oregon Circuit Judge also granted the homeowners’ motion to amend their original Complaint, which was filed in 2010 to defend against what was then a non-judicial foreclosure instituted by GMAC mortgage. MERS, which was a defendant in the case, prevailed on summary judgment. The homeowners appealed and prevailed at both the Court of Appeals and Supreme Court levels in what has become known as the “Niday case”, which held that MERS is not a beneficiary of the Deed of Trust despite claiming to be so. Jeff Barnes, Esq. of W. J. Barnes, P.A. represented the homeowners in both of the appeals, and in the hearing today.

The Court’s ruling today permits the homeowners to pursue a new theory of defense developed by Mr. Barnes’ Firm against U.S. Bank as the claimed “trustee” of a securitization trust, despite the fact that it has failed to explain how the enforceable interest in the Note and DOT went from GMAC Mortgage (which filed for Bankruptcy in May of 2012) to U.S. Bank.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

COLORADO HOMEOWNERS GEARING UP FOR RULE 120 HEARING SET FOR NOVEMBER 10

November 4, 2016

Per our prior post, the Colorado Supreme Court is holding a public hearing on proposed changes to CRCP 120, which governs the institution of non-judicial foreclosures, on the afternoon of Thursday, November 10, 2016. Mr. Barnes will be speaking at this hearing. Several homeowners groups will also be in attendance.

CRCP 120, notwithstanding subpart (d) which permits the filing of an independant action to challenge a foreclosure upon the issuance of an Order Authorizing Sale (OAS) following a CRCP 120 hearing, has a host of problems both procedurally and substantively. It is only one of two “probable cause” type proceedings in the entire United States which permit the scheduling of a foreclosure sale in the context of a non-adversarial, quasi-administrative proceeding with no benefit of discovery; a presumption in favor of the foreclosing party; and a “guilty until proven innocent” structure.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

SIGNIFICANT RULING IN COLORADO UPHOLDING AFFIRMATIVE DEFENSES TO FED (EVICTION) ACTION

November 1, 2016

A Colorado (state) District Court has entered an Order which has upheld three affirmative defenses to a Forcible Entry and Detainer (FED/eviction) action. Jeff Barnes, Esq. represents the homeowners, who have been battling Citibank as the securitization trustee claiming to have inherited rights to the Note and Deed of Trust on a loan which was originated by a third party.

Citi prevailed in the underlying CRCP 120 action, which is Colorado’s “probable cause” procedure to begin the non-judicial foreclosure sale process. The Rule provides for the filing of a separate action to contest any Order Authorizing Sale entered as a result of a 120 proceeding. As those of you who follow this website know, Rule 120 is under attack, and Mr. Barnes will be speaking at the hearing on proposed changes to the Rule in Denver on November 10.

Citi later filed a FED action, to which the homeowners raised several affirmative defenses. FED cases are heard by the County Court. The County Court Judge determined that he was without jurisdiction to determine the merits of the asserted affirmative defenses, and stayed the FED action pending a determination on the merits of the defenses by the “District Court”. As several of the defenses were based on state law, the homeowners filed an action for Declaratory Relief and Quiet Title in the state District Court for a determination of the merits of the defenses. Citi filed a Motion to Dismiss that action.

Yesterday, the District Judge denied Citi’s Motion to Dismiss as to three of the five affirmative defenses, which sound in issues relating to an undetermined tenant in common interest as to one of the homeowners; no clear chain of title as to the loan; and that the loan is owned by a third party. The District Court ordered Defendant Citi to file an Answer to those defenses and to the remainder of the Complaint.

The first defense related to the (then) lack of a ruling on the homeowners’ objection to sale, which was denied. The fifth defense is a procedural defense: that issues as to title must be resolved before issues of possession are determined in a FED action. This is why the County Court Judge stayed the FED case: so that the merits of the “title” related issues could be adjudicated first (which is the law in Colorado).

The homeowners will now proceed to discovery on the issues arising out of the preserved defenses, two of which relate directly to the alleged standing of Citi to do anything.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FDN NETWORK ATTORNEY JASON ESTAVILLO DEFEATS SUMMARY JUDGMENT ON ALL COUNTS OF COMPLAINT

October 7, 2016

Today, FDN network attorney Jason Estavillo, Esq. was successful in defeating Bank of America and HSBC Bank on their Motion for Summary Judgment or in the Alternative Summary Adjudication in San Francisco Superior Court. Mr. Estavillo represents the homeowners.

The court denied BOA’s and HSBC’s MSJ as to all counts of the homeowners’ Complaint, sounding in Cancellation of Instruments, Violations of Business and Professions Code Sec. 17200 et seq., Declaratory Relief, and Breach of Contract. The Court held that BOA and HSBC “failed to show that the beneficial interest in the Note and Deed of Trust were “transferred” to Countrywide Financial.”

BOA and HSBC attempted to prove the alleged “transfer” of the loan through a third party letter, but the court held that the letter was not admissible evidence and even if it was, “it does not show that Countrywide Financial ever “accepted” it or even paid the purchase price. Additionally, no evidence is presented to show a connection between Countrywide Financial and Bank of America, N.A. as successor by merger to BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing LP.”

Summary Judgment was denied as to all causes of action. The case now proceeds to trial.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FEDERAL 10TH CIRCUIT PERMITS HOMEOWNERS TO SUE BANK OF AMERICA FOR RICO VIOLATIONS IN CONNECTION WITH LOAN MOD MISREPRESENTATIONS

October 5, 2016

The United States Court of Appeals for the 10th Circuit (which is the Federal appeals court for Federal cases filed in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) has issued a 38-page opinion which reversed the trial court’s dismissal of RICO and other claims filed by homeowners against Bank of America and a company which it hired in connection with fraudulent administration of HAMP loan mod applications. The case is George et al. v. Urban Settlement Services and Bank of America, No. 14-1427 (10th Cir., Aug. 15, 2016).

The homeowners alleged that the Defendants fraudulently represented that if the homeowners made all of their TPP payments during the trial period that BOA would sign off on their loan modifications and the modifications would become permanent. Although the homeowners complied with all of the terms of the TPP and BOA sent permanent loan mod applications which were completed by the homeowners, BOA failed to modify the loans.

The 10th Circuit cited decisions from the 1st, 7th, and 9th Circuits which held that the promises made in TPP documents were enforceable, and found that the homeowners had alleged sufficient facts to support claims under RICO against BOA and the company it hired, and for promissory estoppel against BOA.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FD SEMINARS ADDITIONAL CLE CERTIFICATION OBTAINED

October 5, 2016

FD Seminars presenter Richard Kahn has obtained four (4) CLE credits for the courses which he will be teaching at the Foreclosure Defense seminar series. The Florida Bar has accredited his courses for four General CLE credits, and also 4 credits for business litigation and 4 credits for real estate.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FORECLOSURE DEFENSE SEMINARS TO ADD ADDITIONAL CLE CREDITS; SEMINAR APPROVED FOR 5.50 CLE CREDITS BY PENNSYLVANIA CONTINUING LEGAL EDUCATION BOARD

September 30, 2016

The FDSeminars Foreclosure Defense seminar has sought to add additional CLE credits so that the total credit for each seminar will be seven (7) credits. The additional credits being sought are for the courses to be taught by securitization expert Richard Kahn, who requested CLE accreditation from The Florida Bar for his presentations at the seminars. Mr. Barnes previously obtained accreditation for five (5) CLE credits for the courses which he teaches at the seminars.

Mr. Kahn is the author of two books on securitization and using securitization information in defending foreclosures. He and Jeff Barnes, Esq. will be the keynote speakers at the upcoming seminars in Oakland (San Francisco/East Bay), California on Friday, October 14, 2016, and in Irvine (Orange County) California on Friday, November 18, 2016.

Today, we received notification from a Pennsylvania attorney who attended our seminar in New Jersey that the seminar has been approved for 5.50 CLE credits by the Pennsylvania Continuing Legal education Board.

Information and registration may be obtained by going to the website, www.FDSeminars.com under the “SeminarInfo” link.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

JEFF BARNES, ESQ. TO SPEAK AT COLORADO SUPREME COURT PUBLIC HEARING ON PROPOSED AMENDMENTS TO CRCP 120

September 28, 2016

The Colorado Supreme Court is holding a public hearing on Friday, November 10, 2016 as to proposed amendments to CRCP 120, which Rule governs the initiation and proceedings for non-judicial foreclosures in Colorado. Mr. Barnes’ Firm has been defending CRCP 120 proceedings for over eight years, and has seen first-hand the problems with the existing procedure. Mr. Barnes will be speaking at the meeting as to proposed amendments to the Rule.

The hearing will be held in the Colorado Supreme Court courtroom, 2 East 14th Avenue, 4th Floor, Denver, Colorado on Friday, November 10 beginning at 2:30 p.m. The hearing is open to the public.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com