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

WELLS FARGO AND U.S. BANK ARROGANCE RISES TO NEW LEVEL

March 23, 2016

The following is a true story.

Wells Fargo filed a foreclosure action in Pinellas County, Florida and allegedly effected service of the Complaint by “publication”. The homeowner resides out of the United States and has for 26 years, as was known to Wells Fargo at all times including from the time the loan was originated through World Savings (which WF claimed to have later merged with). However, Wells Fargo specifically instructed the process server, in writing, not to attempt service at the homeowner’s known address outside of the United States. Wells Fargo thereafter obtained a “default judgment”.

Jeff Barnes, Esq. was retained to attack the Final Judgment, and was successful in having it vacated due to lack of proper service. The Court itself stated at the hearing that the process server’s affidavit stated on it that WF had instructed the process server not to attempt service at the homeowner’s known address, which is a deliberate act in violation of Florida’s service of process statutes.

After Mr. Barnes had filed the Motion to Vacate the Final Judgment thus putting Wells Fargo and its counsel on notice thereof but before a hearing thereon could be scheduled, Wells Fargo sold the property to a third party. The Court ultimately granted the Motion to Vacate. However, WF refused to take any action to void the conveyance to the third party, thus depriving the homeowner of his rightful interest in the property as evidenced by the Court’s vacatur of the Final Judgment.

Wells Fargo’s counsel refused to take any action to remove the alleged new “owner”, and has failed to compensate the homeowner in any respect.

U.S. Bank as Trustee for a private securitization thereafter filed a “new” Complaint seeking to foreclose (again). The homeowner filed a Motion to Dismiss due to a conflict between the allegations of the Complaint and the exhibits attached thereto.

U.S. Bank then “filed” an Amended Complaint through the same law Firm which had represented WF in the prior phase of the action, but did not copy Mr. Barnes with the AMC (just as these same attorneys did not serve the original Complaint on the homeowner). The attorneys then sought a “default”, which they did copy to Mr. Barnes, who notified immediately the attorneys of their failure to copy him with the Amended Complaint. The AMC was eventually forwarded, and Mr. Barnes has, on behalf of the homeowner, filed an Answer and Affirmative Defenses to the AMC and a Counterclaim against U.S. Bank for conversion of the property. The Counterclaim contains a reservation to seek punitive damages against U.S. Bank.

The Amended Complaint claims that U.S. Bank came into an interest in the Note through an alleged “Allonge”.  There is no evidence that the “Allonge” existed at the time the Note was executed and it could not have, as the Allonge is executed by Wells Fargo whereas the Note was in favor of World Savings. The homeowner has alleged that the Allonge was fabricated for purposes of the litigation pursuant to the Wells Fargo Home Mortgage Foreclosure Attorney Procedure Manual, which has been called the “Wells Fargo Fraud Manual” as it instructs WF’s foreclosure attorneys how and when to manufacture documents for purposes of foreclosure when such documents are otherwise missing. The Manual was previously circulated on the web and is readily available.

In an ironic twist, U.S. Bank has named, as a Defendant, the third party who WF sold the property to. It will be interesting to see how this alleged purchaser responds to being sued by the claimed successor of the very bank which sold him the property to begin with.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

TENNESSEE COURT DECLINES TO GRANT SUMMARY JUDGMENT TO FNMA ON POSSESSION CASE

March 15, 2016

Yesterday, a Hamilton County, (Chattanooga) Tennessee Circuit Judge declined to grant summary judgment to FNMA in a post-foreclosure FED (forcible entry and detainer) case based on the homeowner’s assertion of a defense of wrongful foreclosure. The homeowner is represented by Jeff Barnes, Esq. and local Tennessee counsel Fred Clelland, Esq. Mr. Barnes prepared the opposition memorandum, client affidavit, and argued the matter in open court in Chattanooga yesterday.

The homeowner had been defending the case pro se. After losing the underlying foreclosure and the FED portion of the case in Sessions Court, she appealed the FED portion to the Circuit Court and then retained Mr. Barnes and Mr. Clelland.

Bank of America had instituted the underlying non-judicial foreclosure proceeding. FNMA was the successful bidder at the sale. FNMA moved for summary judgment in the FED case on the issue of possession. The homeowner’s affidavit set forth facts which demonstrated that BOA had manufactured a fraudulent foreclosure by failing to credit payments made; refusing to acknowledge payments actually made and retained by BOA; diverted payments to accounts which did not credit the payments to principal and interest; wrongfully increased the escrow requirements without notice as required by the loan documents; and wrongfully forced the homeowner to maintain an escrow account after PMI was removed, which is also illegal.

Mr. Barnes argued Tennessee appellate case law which was practically on point (and which also involved FNMA attempting to obtain summary judgment of possession after purchasing property at a foreclosure sale) which holds that when a homeowner raises a defense of wrongful foreclosure alleging certain facts, there is a question of fact as to whether the foreclosing party passed good title to the purchaser at the sale. Without passing clear or good title, there is no “landlord/tenant” relationship created which would permit a judgment of possession, and there are questions of fact which preclude summary judgment.

The Court thus denied FNMA’s Motion for Summary Judgment. The case now progresses into discovery.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

BANKSTERS FURIOUS OVER JESINOSKI RESCISSION FILINGS

March 11, 2016

As those of you who follow this website know, Mr. Barnes and his local counsel have filed Jesinoski-based rescission actions in several states. Pushback from the bankster attorneys has been fierce and arrogant, and in one case in Tennessee, downright nasty and unprofessional. Attorneys for the “bank” Defendant screamed at and threatened Mr. Barnes’ local counsel, claiming “You and that guy Barnes are just going around the country getting people free houses!!!”.

The truth is that Mr. Barnes and his local counsel have, for now going on 8 years, continuously advocated the homeowner’s rights and interests and have steadfastly challenged the banksters’ and servicers’ alleged claims of being the “person entitled to enforce” the Note and mortgage instrument (whether it be a Mortgage, Deed of Trust, or what is called in Georgia a “Security Deed”). As our followers know and as demonstrated by the archives section of this website (to the right), the fight has been long and hard, but we are and will continue to keep fighting against the Wall Street/investment bank goliaths.

No one has ever received a “free house”. The accusation itself is untrue, unless applied to the banksters who, in most of the cases we deal with, are not even the lender and who most likely have been paid more than once and up to perhaps 30 or 40 times over on the Note given the structure of securitizations and tranche assignments when viewed against the portfolio insurances, reserve pools, credit default swaps, and other “protection mechanisms” which insure that the banksters get paid regardless of any claimed “default” on the part of the borrower. The foreclosure proceedings are thus designed to give the downline claimed transferees a “free house” with minimal effort, and after they have already been paid on a Note that they did not even originate.

Jesinoski has opened up a plethora of new legal issues. In fact, in one Motion to Dismiss filed by the “bank” in one of the pending cases, counsel for the “bank” admits that the courts of that state have not addressed the precise issue framed by the complaint. Given the truth of that statement (that the case is in fact one of “first impression” in that state), it all but insures that the non-prevailing party will take any decision to the U.S. Court of Appeals for that jurisdiction, and to the United States Supreme Court thereafter if deemed necessary.

What irks the banksters is that homeowners are demonstrating that they will no longer be treated like cattle to the slaughter, nor can the banksters simply steamroll over and trample upon homeowner’s rights and permit the banksters to continue to perpetrate fraudulent foreclosures. Banksters view homeowner defenses to foreclosures as roadblocks to their business model to obtain “free houses” for little or no cost or effort.

The battle here has just begun.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

SHOWDOWN IN NEBRASKA: MERS AND ISSUES AS TO UCC 3-308 SIGNATURE CHALLENGES AND WHETHER BOA HAS STANDING TO FORECLOSE

March 3, 2016

Jeff Barnes, Esq. of W.J. Barnes, P.A. was previously retained to defend a foreclosure instituted by Bank of America against a homeowner in a Nebraska foreclosure case. BOA filed a Motion for Summary Judgment (MSJ) which is being argued later this month by Mr. Barnes, who has been admitted pro hac vice to the Lancaster County, Nebraska District Court.

There are several critical issues in the case, including whether MERS had any authority to act at all and especially in light of the Supreme Court of Nebraska’s prior decision in MERS v. Nebraska Department of Banking and Finance, where MERS’ counsel made numerous admissions including that MERS has no interest in promissory notes and disclaimed the authority of MERS to act in certain situations. BOA has attempted to distinguish this case on the basis of a recent decision from the Supreme Court of Nebraska. However, that decision did not involve or raise a specific challenge to MERS’ alleged authority, which was made in the case which Mr. Barnes will be arguing as part of the issues raised by Mr. Barnes in the pleadings and as part of the homeowner’s opposition to BOA’s MSJ.

One of the other central issues involves a “UCC 3-308 challenge”, which is a challenge to the alleged signature of the person whose name appears on the alleged “endorsement” on the Note. Nebraska’s UCC and case law which discuss issues of negotiation raise issues as to whether the party seeking to enforce the Note is a “holder in due course”, and section 3-308 of the UCC applies to “each” signature on a Note without exception in the statute. The homeowner has raised these issues as well through Mr. Barnes.

The ultimate decision on the MSJ at either the trial or appellate level has significant implications for homeowners in Nebraska and other states as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com