Please pardon the dust while we update our website

We are in the process of a major update to the website, making it mobile friendly and modernizing the theme.  This caused the site to be down for a period of a few days and we apologize for this, however we are over the hump and rounding the corner to completion.

You may see some style changes over the next few days as we complete the work and finish our upgrades.  Thank you for your patience and your dedicated viewership.


September 18, 2015

Yesterday, a case was brought to our attention which was issued in 2004 but which applies to current litigation. A Federal appeals court upheld awards of compensatory damages, attorneys’ fees, and a $6 million dollar punitive damage award against EMC Mortgage Corporation arising out of its actions in breaking into the homeowners’ residence without their consent and posting a sign in the window that the property was “secured” and not for sale or rent. This conduct occurred during foreclosure litigation, and at the time, EMC did not have any title to the property or judgment or any other rights of possession.

EMC also, with knowledge that the homeowners were represented by counsel, repeatedly directly contacted the homeowners, who then moved to amend their complaint to include claims alleging intentional wrongful actions against EMC and seeking punitive damages for violations of the Fair Debt Collection Practices Act (FDCPA).

Even though the homeowners were living in an apartment when the wrongful conduct occurred, the arbitrator found that EMC’s conduct was “reprehensible and outrageous and in total disregard” of the homeowners’ legal rights, and awarded $6 million in punitive damages against EMC for violations of the FDCPA, 15 USC sec. 1692. The United States Court of Appeals for the 8th Circuit affirmed all awards. Stark v. Sandberg and EMC et al., 381 F.3d 793 (8th Cir. 2004).

Mr. Barnes has applied this holding to a current case in North Florida where the foreclosing party not only broke into the homeowner’s property and changed the locks, but also stole certain items and destroyed others. A Motion to amend the Answer to add additional affirmative defenses and a Counterclaim for damages including punitive damages has been filed today.

We have been advised by homeowners that “banks” and servicers have wrongfully entered property (which is in the midst of foreclosure litigation or a challenge to the foreclosure) under the guise of “securing” it when the “bank” or servicer has no rights of possession to the property. The Stark opinion provides that significant damage claims can be asserted against those “banks” and servicers for this type of conduct.

Jeff Barnes, Esq.,


September 16, 2015

Two homeowners have filed a Federal Civil Rights action against three officers of a Colorado Sheriff’s Office, the Federal National Mortgage Association, and attorney Lawrence Castle for damages arising out of a horrific eviction where the Sheriff’s office utilized over a dozen children to essentially rape the homeowners’ home and destroy their possessions and furniture. Attorney Lawrence Castle instituted the eviction. As those of you who follow news in the foreclosure arena know, Castle closed his foreclosure mill after being sued by not only his clients by the Colorado Attorney General for committing a massive multi-million dollar fraud upon his Firm’s clients (see Denver Post, July 15, 2014 “AG sues Colorado’s largest foreclosure law firms alleging massive fraud”).

The action also alleges that a representative of FNMA assisted in the effort to not only permit the destruction, but also to interfere with the work of the professional movers who were hired by the homeowners. The movers were and had been in the process of removing possessions from the home when the Sheriff’s office defendants on the scene directed the movers to cease their work and instructed the swarm of children to go into the home with black plastic garbage bags and throw all of the homeowners’ possessions into the bags.

The professional movers requested the on-scene law enforcement defendants to permit them to remove the heavy furniture and appliances. The law enforcement defendants refused to do so, and instructed the children to remove the furniture and appliances, which they destroyed in the process. The homeowners were told the following day that the children were routinely used for evictions and were paid with a bag of cash.

Jeff Barnes, Esq. represents the homeowners. A copy of the Verified Amended Complaint is available upon e-mail request.

The Verified Amended Complaint was finalized the day before Mr. Barnes was advised of a press release relating to the feature film 99 Homes, which opens in theaters on September 25. The film details the horrors of the eviction process, and the director credits Lynn Szymoniak as a “major force in my research” in addition to the fact that the massive fraudulent paperwork perpetrated the banks in foreclosures “is still happening now.”

Jeff Barnes, Esq.,


August 21, 2015

This time of year is generally slow in foreclosure litigation as many of the Judges and attorneys are on vacation. However, the Florida appellate courts have been issuing opinions reversing foreclosure judgments on almost a weekly basis.

For years, mere possession of an alleged note with a “blank endorsement” (which we call a “stamp”) was enough to carry the day to prove standing without any evidence of authority or authentication of the stamp and despite homeowner defenses challenging the alleged “endorsement”. In many jurisdictions, it still is.

However, the Florida appellate courts have taken the lead in delving into the real issues surrounding the alleged “endorsements”, none of which are ever dated. In the recent opinion of Kelly v. Bank of New York as Trustee for CWALT, Inc. ALT 2007-25, Florida 1st District Court of Appeal Case No. 1D13-2778 (opinion issued July 14, 2015), the Court reversed the final judgment of foreclosure finding that BNY had failed to prove standing on multiple grounds, and despite testimony from the representative of a prior servicer that the “collateral file” was sent to foreclosure counsel prior to the filing of the Complaint.

The Court held that where the plaintiff files the original note after filing suit, an undated blank endorsement on the note is insufficient to prove standing at the time the initial complaint was filed, citing to Tilus v. AS Michai LLC, 161 So.3d 1284 at 1286 (Fla. 4th DCA 2015). The Court further held that when a plaintiff asserts standing based on an undated endorsement, it must show that the endorsement occurred before the filing of the complaint through additional evidence, citing to Lloyd v. Bank of NY Mellon, 160 So.3d 513 at 515 (Fla. 4th DCA 2015).

The Court found that the only “additional evidence” was the testimony from a mortgage resolution associate for a prior servicer who did not testify as to when the endorsement occurred. The fact that the testimony established only that the original plaintiff was in possession of the note at the time the complaint was filed was not enough to establish standing in the absence of evidence as to when the endorsement occurred.

We have found that in addition to these stamps not being dated, there are often situations where (a) the stamp is not even on the signature page of the note but was placed on the back of one of the pages; (b) the alleged signor of the stamp was not an employee of the entity whose name appears with the stamp; (c) that the signature on the stamp is one of many variations of the signature of the signer; and (d) that there are multiple versions of the note, both with and without stamps and filed at different stages of the litigation.

Just two days ago, the Florida 4th District Court of Appeal issued its opinion in Perez v. Deutsche Bank National Trust Company, etc., Case No. 4D13-4812, which reversed another final judgment of foreclosure involving Ocwen where the representative testified that the note was provided to Deutsche Bank at the time that the securitization trust was created in connection with the PSA. However, the representative did not know when Ocwen requested the note.

The Court held that Deutsche Bank failed to establish standing because no evidence was introduced showing that the note was transferred to Deutsche Bank prior to the inception of the lawsuit. Like prior cases, the “endorsement” was undated. The representative was unable to testify when the note was endorsed, and the PSA was not introduced into evidence. The Court also held that even if the PSA had been introduced into evidence, this would be insufficient to establish standing as there was no evidence that the indorsee had the intent to transfer any interest to the trustee, citing to Balch v. LaSalle Bank, N.A., 2015 WL 641534 (Fla. 4th DCA, Aug. 5, 2015).

The Perez Court also cited to Jarvis v. Deutsche Bank, 40 Fla. L. Weekly D1416 (Fla. 4th DCA, June 17, 2015) which held that evidence that the note was physically transferred into a trust prior to Deutsche Bank filing its complaint does not, by itself, establish standing.

These decisions finally deal with the real issues as to what proof of standing is all about, and dispel the myth that mere possession of a note with a blank and undated stamp is enough to take away someone’s home. Bravo and kudos to the Florida appellate courts. The rest of the courts in this country should take notice and hold foreclosing parties to their evidentiary burdens.

We thank several of our dedicated followers for bringing these important appellate decisions to our attention.

Jeff Barnes, Esq.,


July 27, 2015

Last Friday, July 24, a Franklin (Williamson County), Tennessee Circuit Judge ruled against BNY, denying its Motion to Dismiss and staying a foreclosure. Per our prior post, last Monday, July 20, a Circuit Judge in Dandridge (Jefferson County), Tennessee also ruled against BNY denying its motion to dissolve a restraining order precluding any sale of the property during the course of the homeowners’ challenge to the foreclosure. The homeowners in that case are represented by Jeff Barnes, Esq. and local TN counsel Andrew Farmer, Esq.

The Franklin case involves MERS and BNY as the alleged trustee of a Countrywide securitization where two separate trusts are claiming ownership of the loan (a CWMBS and a CWALT). Jeff Barnes, Esq. represents the homeowners together with local TN counsel John Higgins, Esq. Mr. Barnes and drafted the opposition to BNY’s Motion to Dismiss, and the Judge issued his ruling in open court without any oral argument, although counsel for BNY repeatedly challenged the Judge’s oral pronouncement that he was denying BNY’s motion.

The MERS issues are currently on appeal in Tennessee following the Ditto decision which, like many other appellate courts throughout the US, held that MERS has no independent interest in real property and no protected interest in real property by being named beneficiary or nominee, and cited case law that MERS is contractually prohibited  from exercising any rights with respect to mortgages including foreclosure.

The rulings on Monday and Friday of last week, in both eastern and middle Tennessee, demonstrate that Tennessee courts are no longer blindly accepting the “we have the Note, therefore we win” position consistently taken by the “banks” and servicers.

Jeff Barnes, Esq.,


July 21, 2015

Yesterday, a Dandridge (Jefferson County), Tennessee Circuit Court Judge declined, for the second time in 30 months, to dissolve a restraining Order precluding any nonjudicial sale and also declined to require the homeowners to post a bond as a condition of precluding any sale in a Bank of NY securitization case involving America’s Wholesale Lender (AWL) as the alleged original lender. The Judge’s ruling reiterates the Court’s previous denial of the same request made by BNY back in 2012.

Jeff Barnes, Esq. represents the homeowners together with local TN counsel Andrew Farmer, Esq. Mr. Barnes wrote the responsive brief and argued the matter yesterday in the Jefferson County courthouse in Dandridge, TN.

The homeowners originally filed suit in 2010 challenging BNY’s alleged right to seek a non-judicial foreclosure. The Circuit Court Judge entered a restraining order on Motion of the homeowners prepared and filed by Mr. Barnes. No bond was required as Rule 65.05(1) of the Tennessee Rules of Civil Procedure provides that a bond is for the payment of costs and damages which the party being enjoined may be shown to have suffered while being enjoined. The intent of the Rule is that there has to be evidence of such damages, which go in part into the future. BNY presented no such evidence, and the homeowners are challenging BNY’s standing to seek any relief at all.

BNY had also previously filed a Motion to Dismiss the homeowners’ Complaint, which Motion was denied. BNY had also moved to stay discovery, which was also denied.

In the 30 months since the entry of the original restraining Order, BNY did nothing to appeal or otherwise challenge the Order, and presented no evidence of any alleged damages being suffered while being enjoined from selling the property during the pendency of the litigation. The Judge stated “the Defendant [BNY] is no worse off than it was back in 2012”.

The homeowners are not only challenging BNY’s lack of standing to seek any relief due to no evidence of a lawful transfer to the securitization trust, but also that the loan may have been paid down or paid off from insurances, credit default swaps, and the like. They are also challenging any alleged right to enforce the loan in view of the Nash decision from Florida which found that AWL never existed and the loan was thus void resulting in no valid obligation to enforce. The Judge stated that “these are legitimate questions”.

In the end, the Judge stated that he had not been presented with any evidence by which he could calculate a bond, especially as the question of who owns the loan remains unanswered, and thus continued the imposition of the restraining Order without the requirement of a bond.

Jeff Barnes, Esq.,


July 10, 2015

Yesterday, an Oregon Circuit Court Judge issued a detailed, multi-page ruling denying BONY’s Motion for Summary Judgment in a case involving a purported transfer of a loan (allegedly) originated by America’s Wholesale Lender to a securitization trust. The ruling is of statewide significance for several reasons, including the fact that there is presently no Oregon appellate law on the issues.

Jeff Barnes, Esq. represents the homeowners together with local Oregon counsel Philip Anderson, Esq. The Motion was argued in open court by Mr. Barnes, who drafted the responsive papers, on June 25, with the ruling being issued late yesterday afternoon.

Oregon has four issues in a judicial foreclosure, the first being whether the foreclosing party is the “PETE” (person entitled to enforce). The Court denied BONY’s MSJ on this threshold requirement, and based on the arguments made by Mr. Barnes and the filing of an ORCP 47E Affidavit as to an expert witness, permitted the homeowners to present expert testimony as to the authenticity and legal relationships involved in the transaction, citing a recent (2015) Oregon appellate decision on the issue of the scope and requirements of Rule 47E Affidavits.

BONY had argued that no expert testimony was needed in what it called “a simple foreclosure case” The 2015 case sets forth that such Affidavits need only to contain certain language and are evaluated in view of the theory of the case. This case involves numerous complex issues including but not limited to the America’s Wholesale Lender issues (previously discussed on this website) and the securitization issues, including the legitimacy of any alleged transfer under the factual circumstances of the case.

The second and perhaps most important ruling was that the Court, in denying summary judgment on BONY’s claim that the homeowners did not have standing to challenge the sale, transfer, and assignment of the Note and DOT, held that the homeowners do have such standing “to challenge the legitimacy of Plaintiff’s claim that they, as the alleged assignee, possessor, and holder of the Note and Deed of Trust, are the proper party to enforce them.”

This ruling is in accord with the U.S. Court of Appeals for the 6th Circuit’s October, 2014 opinion in the Slorp v. Lerner decision (previously discussed on this website) which clarified the flawed and improperly narrow interpretation of the 6th Circuit’s prior opinion in the 2010 Livonia Properties case, which bank and servicer attorneys (erroneously) argued precluded homeowner challenges to assignments and transfers of mortgage loans. The 1st Circuit Court of Appeals is also in accord pursuant to its holding in the Cosajay decision, which held that its “decision finding standing is buttressed by Defendants’ extreme and incongruous argument that would allow Ms. Cosajay no relief because she is not a party to the assignment.”

The case now progresses to full trial on the merits, including the issues involving the alleged “loan” by America’s Wholesale Lender; whether there was any interest to transfer, etc.

Jeff Barnes, Esq.,


July 9, 2015

We hope everyone had a safe and happy July 4th holiday. Mr. Barnes recently completed a month-long “tour of duty” throughout the US involving trials and hearings in several states including Florida, Oregon, Tennessee, Illinois, and Colorado, and is preparing for another battery of court appearances in New Jersey, Colorado, Florida, and Tennessee.

The Florida 4th District Court of Appeal has reversed a Final Judgment of Foreclosure which a Ft. Lauderdale, Florida Circuit Judge had entered in favor of JPMorgan Chase Bank; dismissed the foreclosure due to lack of standing; and directed that judgment be entered in favor of the homeowner in the matter of Wright v. JPMorgan Chase Bank N.A., 4th DCA Case No. 4D14-565. We thank one of our dedicated followers for bringing this case to our attention.

The case is of particular interest as the original Note was in favor of Chase Bank USA, which JPM claimed to be its wholly-owned subsidiary. JPM argued that it obtained servicing rights over the loan and that as the parent company of the wholly owned subsidiary, it had the right to enforce a Note in favor of its subsidiary.

The 4th DCA disagreed, holding that Chase Bank was a separate legal entity and as such, the parent company could not exercise the rights of a subsidiary, citing two appellate decisions on this issue. The Court held that absent evidence that the loan was purchased by JPM, it could not enforce the Note. JPM did not introduce any purchase agreement or other evidence that it had acquired the Note.

The Florida 4th DCA has consistently been one of the few appellate courts in the entire country to really examine the issues involved in foreclosures and hold the foreclosing party to its legal burdens. Other Florida appellate courts are recently beginning to do likewise.

We have been receiving many inquiries since our publication on the America’s Wholesale Lender issues raised by the Nash decision in Florida. Mr. Barnes currently has cases pending in two states on the issue of whether AWL ever legally existed and thus whether any alleged “successor” thereto may seek to enforce a Note in favor of a non-existent, unlicensed mortgage “Lender.”

Jeff Barnes, Esq.,


May 18, 2015

Butler & Hosch, which was (according to the press) one of the largest foreclosure mills in the country, has shut down and has filed an Assignment for the benefit of creditors. The Firm was based in Orlando, Florida and had offices in numerous states and was prosecuting approximately 60,000 foreclosure cases, having admittedly picked up “many files from the defunct Law Offices of David J. Stern”.

The press has stated that its 700 employees were “stunned” at the news, which was apparently delivered at 5:00 p.m. last Thursday in a conference call with an attorney from another large law Firm which handles foreclosures in Florida.

Thus, those 60,000 cases will be in limbo until the former clients of B&H retain another law Firm, which may be difficult as many of the files are most likely infected with David Stern problems (e.g. fraudulently manufactured documents, bogus assignments, backdated notaries, fraudulent claims, etc.).

Jeff Barnes, Esq.,


May 11, 2015

As our readers know, whenever a homeowner seeks to challenge an assignment of mortgage (or deed of trust), “bank” attorneys chant the mantra “the borrower has no standing to challenge an assignment as he is not a party to it”, allegedly relying on the body of case law which stemmed from the decision of the US Court of Appeals for the 6th Circuit in Livonia Properties Holdings, LLC v. 12840-12976 Farmington Road Holdings, LLC, 399 F. App’x 97 (6th Cir. 2010).  Unfortunately, many courts across the US jumped on the bandwagon, apparently having never actually read the full opinion or the 6th Circuit’s more recent decision in Slorp v. Lerner et al., No. 13-3402 (6th Cir. September 29, 2014), which clarified the erroneous application of Livonia Properties (with citation to several post-Livonia Properties decisions) and which the 6th Circuit itself stated (as to the Livonia Properties case) “has confounded some courts and litigants”.

In partially reversing the trial court, the 6th Circuit held the following:

The sweeping rule that the district court extrapolated from Livonia Properties dwarfs our actual holding in that case. The district court in Livonia Properties stated that an individual “who is not a party to an assignment lacks standing to challenge that assignment”, and our Livonia Properties opinion quoted and endorsed that general statement, perhaps inartfully. But we quickly limited the scope of that rule, clarifying that a non-party homeowner may challenge the validity of an assignment to establish the assignee’s lack of title, among other defects. See also Carmack v. Bank of N.Y. Mellon, 534 F. App’x 508-511-12 (6th Cir. 2013)(“Livonia’s statement on standing should not be read broadly to preclude all borrowers from challenging the validity of mortgage assignments under Michigan law.”) Thus, a non-party homeowner may challenge a putative assignment’s validity on the basis that it was not effective to pass legal title to the putative assignee. See Conlin v. Mortg. Elec. Registration Sys., 714 F.3d 355,361 (6th Cir. 2013); …see also Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 353-354 (1st Cir. 2013)(“the debtor may also question a plaintiff’s lack of title or right to sue”). (emphasis added)

The Slorp opinion went on to distinguish the facts in Livonia Properties to clarify that the homeowner lacked “standing” to assert that the assignment was not properly recorded or suffered from some technical defects that prevented the assignee from establishing chain of title, but that in the Slorp case, the homeowner alleged that Bank of America, the putative assignee, held neither the mortgage nor the note when it filed the foreclosure action because the parties lacked the authority to assign his mortgage to Bank of America. The court stated: “That distinction makes all the difference”.

However, “bank” attorneys have consistently taken the position that the rejected “sweeping” rule applies. Without a proper argument from the homeowner to highlight the error, courts across the US have gone along with this erroneous non-principle of law. In fact, we just reviewed a decision from a state supreme court which was recently issued (and issued well after Slorp) which still clung to the erroneous “Livonia Properties” rule, without even mentioning the later cases which clarified the error.

In a second example, a District Court of Appeal in Florida previously issued the same type of “sweeping” rule stating that a borrower has no standing to challenge noncompliance with the PSA, grounded on the same argument (that the borrower is not a party to the PSA contract). Although the opinion deals ONLY with PSAs, “bank” attorneys have taken the position that this “rule” applies to prospectuses, SEC 15D filings, SEC interim reports, and all manner of documents relating to securitization trusts. Thus, once again, the “bank” attorneys have perverted the actual holding of case law, and without proper opposition, the courts are again “drinking the Kool-Aid”.

Granted, many courts do not have full-time law clerks to really dig into the arguments made by the “banks” and servicers, but there should be at least a minimal inquiry. A simple WestLaw search on Livonia Properties would have revealed the subsequent decisions which clarified and limited it. The fact that this is apparently not being done is a sad commentary on the system, and leads the public to question the integrity of and distrust the judicial system.

Jeff Barnes, Esq.