FREE FORECLOSURE DEFENSE SEMINAR IN NEW YORK RESCHEDULED TO AFTERNOON OF THURSDAY, AUGUST 17, 2017

August 9, 2017

We previously posted that we are holding a free foreclosure defense seminar which had been scheduled for Friday, Aug. 18, 2017.

The seminar has been rescheduled to Thursday, August 17, 2017 beginning at 3:30 p.m. and will be held at 745 5th Avenue, 5th Floor, New York, New York (which is just south of the east side of the intersection of East 58th Street and 5th Avenue; Bergdorf Goodman is to the left at the ground floor of the building). A one-hour presentation will be made followed by a 30-minute Q&A.

The seminar is open to anyone.

The rescheduling is due to a recent Judge’s Order which changed the hearing date on a motion in a case in Florida, which hearing Mr. Barnes must attend on August 18, 2017.

Materials will be provided at the seminar. Please e-mail us by no later than next Tuesday, Aug. 15 if you plan to attend, as we need to make sure that we have the appropriate number of copies of materials to be distributed.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

CHATTANOOGA, TENNESSEE JUDGE VACATES FINAL JUDGMENT AND STAYS EVICTION

August 7, 2017

Today, a Hamilton County, Tennessee (Chattanooga) Circuit Judge granted the homeowner’s sworn motion to vacate a Final Judgment of foreclosure and to stay eviction proceedings. For those of you who follow this website, this is the same case where in March of 2016 the same Court denied FNMA’s Motion for Summary Judgment in an FED (eviction) case. (See post of March 15, 2016 in archives section of this website, to the right of this post).

The homeowner is represented by Jeff Barnes, Esq. and local TN counsel Fred Clelland, Esq. Mr. Barnes, who is admitted PHV in the case, prepared the Sworn Motion on an expedited basis, as the homeowner just discovered that she was about to be evicted by a notice posted on the door of her residence and without any prior notice that the case had progressed since the March, 2016 summary judgment hearing.

After the motion for summary judgment was denied, FNMA changed attorneys. Despite the record fact that Mr. Barnes and Mr. Clelland were of record as representing the homeowner, FNMA’s new attorneys failed to inform either attorney that it was proceeding forward, and obtained a Final Judgment without any notice to the homeowner or either of her counsel.

Tennessee law supports due process and notice to a litigant concerning critical steps in court proceedings. A final judgment entered without notice constitutes reversible error, which law was cited by Mr. Barnes in the homeowner’s sworn Motion to Vacate and Stay.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

WASHINGTON JUDGE STOPS FORECLOSURE SALE IN AMERICA’S WHOLESALE LENDER CASE

July 26, 2017

This morning, a Pierce County, Washington Superior Court Judge granted the homeowners’ Emergency Motion to enjoin a Trustee’s (foreclosure) sale which was scheduled for July 28, 2017 in a case where the alleged original lender is America’s Wholesale Lender (AWL). The homeowners are represented by Jeff Barnes, Esq. and local Washington counsel James A. Wexler, Esq. Mr. Barnes prepared the Complaint, Emergency Motion, and supporting papers and argued the matter in the Pierce County Courthouse this morning after the Judge granted Mr. Barnes’ application for admission pro hac vice.

The Complaint alleges several causes of action grounded upon, among other things, that AWL never existed and that the claimed “endorsement” stamp on the Note is of no effect as it was not executed by the original named lender but only by Countrywide Home Loans, Inc. d/b/a AWL, and not AWL, the “New York corporation” identified in the Note and Deed of Trust as the “Lender”. The Complaint also includes the argument which Mr. Barnes successfully advanced in Portland, Oregon last Friday, July 21, 2017 (see separate post below) that the residential mortgage loan contract was unilaterally modified by the securitization trust without notice to or consent of the borrowers.

As there is no case law in Washington on these issues, the case is one of first impression in Washington. The Judge agreed and so stated on the record, also stating that the matter is not one for summary judgment and that the issues need to advance to and be resolved at trial.

Jeff Barnes, Esq., www/ForeclosureDefenseNationwide.com

PORTLAND, OREGON JUDGE DENIES WILMINGTON SAVINGS FUND SOCIETY’S MOTION TO DISMISS HOMEOWNERS DECLARATORY RELIEF COUNTERCLAIM RELATED TO UNILATERAL MODIFICATION OF MORTGAGE LOAN

July 21, 2017

This afternoon, a Multnomah County (Portland) Oregon Judge denied a Motion to Dismiss the homeowners’ Counterclaim (to a judicial foreclosure action) for Declaratory Relief in connection with what the homeowners have claimed to be an illegal unilateral modification of a mortgage loan contract by the downline alleged “successor” to the Note and Deed of Trust. The homeowners are represented by Jeff Barnes, Esq. together with local Oregon counsel Elizabeth Lemoine, Esq. As those of you who historically follow this website may be aware, Mr. Barnes and Mrs. Lemoine were the attorneys who prevailed n the Niday v. GMAC case in both the Oregon Court of Appeals and the Supreme Court of Oregon, which decisions established that MERS is not the beneficiary of a Deed of Trust despite claiming to be so.

The foreclosing Plaintiff is an entity which styles itself Wilmington Savings Fund Society as the (alleged) “trustee” of a securitized mortgage loan trust. The case involves a defunct original lender and multiple “Allonges” which are undated and unauthenticated.

The homeowners have alleged that as a result of the loan being securitized that numerous rights were lost which was not disclosed to the homeowners notwithstanding the “your loan may be sold” language in the mortgage loan documents, which the homeowners have contended is an incomplete and misleading disclosure. The homeowners have also taken the position that Wilmington’s “sale” of the loan to an unregulated commercial investment entity with the concomitant loss of rights and protections afforded to residential mortgage loans issued by Federally-regulated mortgage lenders resulted in the unilateral modification of the mortgage loan contract . As in all states, unilateral modification of contracts, without consent and any required additional consideration for the modification, is illegal.

Mr. Barnes is advancing this claim in several states, including Oregon, Florida, New York, and Tennessee. There is currently no case law on the issues or as to this particular claim, so the issues are not precluded by any existing law and are ripe for advancement.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FDN TO GIVE FREE FORECLOSURE SEMINAR IN NEW YORK OFFICE ON FRIDAY, AUGUST 18, 2017

July 17, 2017

FDN’s New York foreclosure defense team will be giving a free, 90-minute seminar on Friday, August 18, 2017 at 745 5th Avenue, 5th Floor, from 3:00 p.m. to 4:30 p.m., and holding an open Q&A from 4:30 p.m. to 5:00 p.m. following the seminar. Written materials will be provided to all who register in advance.

Advance registration is required so that we may secure the proper number of seats and packages of written materials for distribution at the seminar.You may register by contacting William Younghans via e-mail at Willyounghans@gmail.com, or Mr. Barnes’ office by e-mailing to Tiffany@wjbarneslaw.com.

There is no fee for registration or attendance. The seminar is open to homeowners and paralegals. We will have more information as August 18 approaches.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

EVICTION REVERSED IN COLORADO; COUNTY COURT HAD NO JURISDICTION TO PROCEED

July 7, 2017

A Colorado County Court Judge has granted the homeowner’s motions for reconsideration and to transfer an eviction case from County Court to the District Court to be consolidated with an action which was filed before the eviction case was filed. Jeff Barnes, Esq. represents the homeowners. Mr. Barnes had filed an independent action under CRCP 60(b) seeking the vacatur of an Order dismissing the homeowners’ previously filed challenge to the foreclosure. The 60(b) action was pending in the District Court when the foreclosing party filed an “FED” (forcible entry and detainer, a/k/a eviction) action in County Court, as the County Court generally has jurisdiction over FED actions.

Mr. Barnes argued at the FED trial that the County Court had no jurisdiction to proceed given that the homeowners had raised defenses to the foreclosing party’s claim of title to the property, which issues are outside of the County Court’s jurisdiction. The Judge who conducted the trial disagreed and proceeded, but advised that a Motion for Reconsideration would be reviewed if filed.

Although there is no requirement to file a Motion to Transfer an FED case to the District Court under this procedural situation, Mr. Barnes filed such a Motion and a Motion for Reconsideration of the trial Judge’s decision to proceed with the FED action. The presiding Judge in the FED action granted both of Mr. Barnes’ Motions, finding that the County Court had no jurisdiction to continue with the FED trial (which was held on June 28, 2017), and transferred the FED action to the District Court to be consolidated with the previously filed District Court case.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FDN ATTORNEYS RETAINED ON NEW FORECLOSURE MATTERS IN SEVERAL STATES

June 29, 2017

Foreclosure filings, bkoth judicial and non-judicial, continue with no end in sight. The Barnes law Firm together with its network attorneys have recently been retained on new foreclosure cases in New York, New Jersey, Oregon, Washington, Tennessee, and Florida for both trial court and appellate level representation.

Several of these cases involve situations where homeowners attempted to represent themselves, which we have historically cautioned against as foreclosure defense is a complicated area of the law involving issues from contract law, constitutional law, real estate law, and, in securitization cases, securities law as well, in addition to a working knowledge of the applicable procedural rules. A non-attorney who attempts to defend a foreclosure action in this climate is literally stepping into a legal mine field.

We encourage all homeowners who are subject to a foreclosure to seek competent counsel who is familiar with the issues and who practices foreclosure defense on a regular basis. This area of the law is not something one should “dabble” in or attempt to learn over the weekend on the internet.

We wish everyone a happy and safe July 4 holiday.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

NEW YORK FORECLOSURE DEFENSE NETWORK ESTABLISHES INITIAL SINGLE POINT OF CONTACT FOR INCOMING CASES

June 20, 2017

The New York foreclosure defense network continues to expand, with additional counsel being added as well as an initial single point of contact for incoming cases.

William Younghans, who is based in Long Island, is the point of contact in terms of inquiry, questions, and requests for assistance as to New York foreclosure cases. He may be contacted by e-mail at WillYounghans@gmail.com.

We have been working with Mr. Younghans on numerous cases to date, and his assistance has proved to be very valuable to attorneys in our network. His full resume is available upon e-mail request.

Interested persons may also continue to contact the Barnes law Firm by visiting the “Contact Us” link on this website.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

SUMMARY JUDGMENT DEFEATED IN OREGON

June 1, 2017

Today, a Deschutes County, Oregon Judge issued a directive to counsel for the homeowner to prepare an Order denying a Motion for Summary Judgment filed by PennyMac Corp. Jeff Barnes, Esq. represents the homeowner and is admitted PHV into the case, working with local Oregon counsel Philip Anderson, Esq. Mr. Barnes prepared the opposition brief and personally argued the case in court in Bend, Oregon  last week.

The case involves an origination by a lender who, somehow, claims to have transferred the loan to Washington Mutual in connection with a loan modification which was entered into less than 8 weeks before WaMu failed and filed for bankruptcy. JPMorgan Chase claimed to have inherited the loan, which it allegedly transferred to PennyMac.

Mr. Barnes filed and argued the sworn deposition testimony of Lawrence Nardi, former mortgage management employee of WaMu, who has testified in a Florida case that there was never any schedule of mortgage loans purchased by JPM from the FDIC in connection with the failure of WaMu and its FDIC Receivership; that Mr. Nardi testified that there were no assignments, allonges, or endorsements as to any Notes; and the fact that JPM had previously filed a Motion for Summary Judgment in a Federal case where it took the position that it was not the successor in interest to WaMu. Thus, the “blank endorsement” theory advanced by PennyMac was shown to have genuine issues of material fact as to who actually is the “PETE” (person entitled to enforce) the Note and Deed of Trust.

Counsel for PennyMac argued that the recent decisions in the Wamsley  and Peper cases from Oregon’s appellate court, which hold that a holder in possession of a Note has the right to enforce it, supported summary judgment. The Judge disagreed. Significantly, neither Wamsley nor Peper have the facts of this case.

The case now proceeds further into discovery and trial absent any settlement.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

NEW YORK HOMEOWNER REPRESENTATION NETWORK EXPANDS TO ADD FIVE ADDITIONAL COUNTIES

May 18, 2017

The New York homeowner’s representation network has now expanded to include attorney representation in cases in Orange, Dutchess, Rockland, Westchester, and Putnam counties. The network is now positioned to represent homeowners in ten (10) New York counties (those above in addition to Kings, Queens, New York, Nassau, and Suffolk counties). Additional attorneys are being interviewed in the near future as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com