November 17, 2010

The FDN attorney network will now be climbing to 34 law Firms nationwide. Arrangements are being finalized with additional local counsel in Arizona (to handle cases in Maricopa, Pinal, and Yavapai counties); Tennessee (Knoxville and Nashville areas); and New York (the five boroughs of Manhattan, Queens, Brooklyn, Bronx, and Staten Island/Richmond, and the White Plains area). Specific details will be published shortly.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com


November 17, 2010

In a Memorandum dated today from Florida Supreme Court Chief Justice Charles T. Canady to Chief Judges of the Florida Circuit Courts, Justice Canady has attached a letter received from the Florida Press Association and other organizations detailing incidents of denial of access to foreclosure proceedings by court personnel and Judges. The denials were made to pro se litigants, observers, and at least one reporter. 

In one instance, a court observer in Hillsborough County (Tampa) was told that foreclosure proceedings were not open to the public. In another incident in Duval County (Jacksonville), a pro se borrower was told by court security that she could not access foreclosure proceedings because only attorneys were permitted. In another instance in Orange County (Orlando), a court observer was told that foreclosure hearings were held “in private chambers” and not open to the public. The same type of incident was reported to have occurred in Citrus County. In Jacksonville, a separate, distrubing incident occurred which you may have read about in Matt Taibbi’s column in Rolling Stone magazine.

Apparently, a legal aid attorney in Jacksonville attended a foreclosure proceeding accompanied by Mr. Taibbi, who attempted to interview a pro se litigant after the case was heard. Later that day, the Judge sent an e-mail to the attorney “castigating her for bringing the reporter into the proceedings” and stated that “members of the media are only permitted upon proper request to the security officer”, furthering threatening the attorney with contempt if a reporter attempted to interview a homeowner coming out of a foreclosure hearing.

Our threshold questions are:

     What are they trying to hide?

     What are they trying to keep from homeowners from learning about their system?

     What “secrets” about the foreclosure “railroad” system are they trying to prevent the press and borrowers from discovering?

This arrogant, vicious, and threatening conduct is not only unconstitutional, but manifests an outright bias against borrowers attempting to defend their cases and against members of the media attempting to report the truth. When Judges start banning observers from public court proceedings and threatening attorneys for bringing reporters to court, echoes of Nazi Germany come to mind. Fortunately, Chief Justice Canady has now issued the directive that this kind of conduct is to stop at once.

What also needs to be ordered is that foreclosure counsel, particularly certain “local” attorneys who handle hearings for the likes of The Law Offices of David J. Stern, Shapiro & Fishman, The Law Offices of Marshall C. Watson, Florida Default Law Group, and their ilk be likewise admonished and ordered to abide by the Constitution, Court Rules, and case law as well and to stop treating borrowers and their counsel with arrogance and disrespect (which we have observed on numerous occasions). One such attorney has recently gone so far as to represent to the Court that he is appearing for one of these law Firms to argue a Motion, but then refuses to accept a copy of an Order reflecting the Judges’ ruling at the hearing.

Justice Canady’s Memorandum states that he is confident that with the cooperation of all judges and court staff “along with the tools of the revised rules of court procedure [including the Foreclosure Complaint verification requirements of the Florida Supreme Court], implementation of the managed mediation program, and the influx of court resources” that “the Florida courts will be able to meet this challenge in a manner that protects and preserves the rights of all parties as well as interested observers.” Again, “the rights of ALL parties”, which includes pro se litigants and members of the press.

The message from On High is thus clear: cut the crap and comply with the Law and the Rules which have been enacted to protect everyone. If the Circuit Judges want to get mad at someone, they should direct their anger and frustration at the real perpetrators: the Banksters and their RICO Enterprise tool known as MERS, for causing this debacle nationwide; consistently filing fraudulent documents in court; lying about owning mortgage paper and obligations; and perpetrating on this country what is probably the greatest and most massive fraud ever schemed in the history of the United States. Fortunately, more and more members of the Judiciary are recognizing that the borrowers are the victims and not the bad people that the Banksters’ attorneys consistently and wrongfully portray them to be.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com 


November 14, 2010

We ordinarily do not go out of our way to repeat news we hear about on other websites, but this latest story needs repeating and also needs more than urgent attention. Apparently, in the upcoming lame duck session of Congress which begins tomorrow, Monday, November 15, 2010, certain members of Congress are drafting and will attempt to push through one or more bills legitimizing all actions of MERS retroactively through provisions buried in rushed legislation which has nothing to do, on its face, with mortgages, lending, or anything related to the foreclosure crisis in the hope that homeowners do not find it. The actions are allegedly being characterized as those under the Commerce Clause, and are, if this is true, nothing short of a conspiracy between the banksters and the government to perpetuate one of the greatest frauds in history on the American homeowner with the goal of providing the banksters with a mechanism to legitimize the countless frauds of MERS over the years.

Such action is unconstitutional on many fronts, including constituting an illegal ex post facto law; a violation of the 10th Amendment to the United States Constitution; and a conspiracy by the Government to legitimize the fraudulent acts of a private company to the detriment of the United States homeowner.

We have been advised that fortunately, there are certain individuals in Washington who are keeping an eye on this attempted cabal, and are going to work overtime to try to prevent its consummation. Those of you who follow the recent escapades of the banksters know that they recently attempted to have the President sign legislation legitimizing illegal notarizations on foreclosure documents, which thankfully did not happen. The same watchdog/preventive action must be taken here. If not, the banksters will have accomplished the perpetration of the largest fraud upon this country since they got into the securitization business.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com



November 9, 2010

In what can only be described as one of the most arrogant hypocracies in foreclosure litigation, MERS’ own “Terms and Conditions” with its lenders and servicers, which was recently produced to us in court-ordered discovery, expressly states that the MERS system is not to be used to create or transfer interests in mortgage loans. The MERS contract goes on to state that MERS is never to be identified as the owner of the promissory Note in any foreclosure proceedings, and that MERS will monetarily fine any offenders who do so.

Notwithstanding these self-imposed limitations, MERS has and continues to act as the purported “assignor” to assign mortgages AND PROMISSORY NOTES to foreclosing parties in both judicial and non-judicial foreclosures, affirmatively representing that it is assigning the Mortgage (or Deed of Trust) “together with the Note or other indebtedness”. The overwhelming case law from the state, Federal, and Bankruptcy Courts throughout the United States which have dissected the MERS claim have come to the same universal conclusion, which MERS’ own counsel recently admitted on the record in one of our cases: that MERS does not own promissory notes, thus it cannot transfer them.

How, then, does MERS attempt to assign a Mortgage or Deed of Trust “together with the Note”? It lies, pure and simple, and hopes that the unsuspecting borrower does not catch it. Remember, MERS told the Supreme Court of Nebraska, through its attorney, that MERS does not loan money, does not own mortgage loans, does not extend credit, etc., so that MERS would not have to register as a mortgage lender and could thus avoid paying fees. However and despite these representations to a state supreme court by its own attorney, MERS goes to all of the other 49 states and says the exact opposite in the various “assignments”: by claiming ability to assign the Note, it is both creating an interest in the Note which it never had and is also transferring an interest in a mortgage loan, both of which MERS’ own Terms and Conditions say MERS cannot do.

To add insult to injury, MERS also, as the purported “beneficiary” of the Deed of Trust, also attempts to substitute the Trustee to further a foreclosure in the non-judicial states. As the case law has overwhelmingly stated (including the recent Federal decisions in California and Oregon and the prior decisions from Nevada and other states), MERS is NOT a “beneficiary” despite claiming to be so in Deeds of Trust, as the “beneficiary” is the party for whose benefit the Deed of Trust is given, that being the lender. An Oregon Federal case recently analyzed the statutory definition of “beneficiary” under the Oregon Trust Deed Act and concluded that MERS is not the “beneficiary” despite claiming to be so.

So the MERS hypocracy rolls on. It is up to us who actually read and understand the case law and go around the country teaching this to the Courts to continue to do so, especially with attorneys for “lenders”, “servicers”, and trustee banks continuing to chant their one-themed mantra: “the Deed of Trust says MERS is the beneficiary; therefore it is so”. We applaud those Courts who have analyzed the MERS facade and have said it is not so.

Jeff Barnes, Esq., www/ForeclosureDefenseNationwide.com


November 2, 2010

In an October 25, 2010 letter from Deutsche Bank to “All Holders of Residential Mortgage Backed Securities For Which Deutsche Bank National Trust Company or Deutsche Bank Trust Company Americas Acts As Securitization Trustee”, DB reports on “alleged deficiencies” in certain foreclosure proceedings and advises of the prior issuance, by the DB Trustee, of an “Urgent and Time-Sensitive Memorandum” dated October 8, 2010 to its Securitization Loan Servicers regarding servicing foreclosure procedures, demanding that the servicers “comply with all applicable laws relating to foreclosures”. The thrust of this letter, as we see it, is to shift the blame for any wrongful foreclosure practices to the servicers, saying “we told them to comply with the law”, the inference being that DB was not aware of the fraudulent foreclosure practices being engaged in by their servicers and “agents” (that being the attorneys and trustee sale companies who prosecute judicial and non-judicial foreclosures for DB as “trustee”).

Please. Foreclosures are delivered in file boxes to the servicers and attorneys and DB did not engage in any oversight to make sure their own agents (servicers and attorneys) complied with the law? Do they think the investors just fell off the back of the turnip truck?

The October 8, 2010 “Urgent and Time Sensitive” Memorandum attached to the October 25, 2010 Memo makes things even more interesting. Here are some select quotes:

    “The Governing Documents typically require the Trustee to furnish the Servicer with powers of attorney that allow the Servicer to sign documents and institute legal actions, including foreclosure proceedings, in the name of the Trustee on behalf of the Trusts in connection with these servicing activities…. Recent media reports suggest that the Alleged Foreclosure Deficiencies may include the execution and filing by certain servicers and their agents of potentially defective documents, possibly containing alleged untrue assertions of fact, in connection with certain foreclosure proceedings. The reported scope of such alleged practices raises the possibility that such documents may have been filed in connection with foreclosure proceedings relating to mortgage loans owned by the Trusts and may have been executed under color of one or more powers of attorney granted to Servicers pursuant to the Governing Documents. Any such actions by a servicer or its agents would constitute a breach of that Servicer’s obligations under the Governing Documents and applicable law.”

Read that carefully: “raises the possibility” that deficient documents “may” have been filed under “color of” powers of attorney, and if so, this would constitute a breach of contract and violations of law. Disputed issues of material fact precluding summary judgment, anyone? Telling the servicers that any counterclaim for wrongful or illegal foreclosure is the problem of the servicer and their attorneys? We don’t think so. Agent liability generally flows upstream to the principal, sometimes even in instances where the agent committed illegal acts, and contractual disclaimers are not always a defense.

So what we have here is DB tacitly admitting that its servicers and attorneys “possibly” filed fraudulent foreclosure documents (which we all know did in fact happen, with “robo-signer” assignments, backdated notaries, etc.), which if done “under color of” required powers of attorney, is illegal on more than one front.

As those of us who defend foreclosures in the judicial states know, there is NEVER, EVER, any such power of attorney attached to a foreclosure Complaint showing that the servicer or agent had authority to file the foreclosure, and when we request documentary evidence of such authority in discovery, we get “objections” as “irrelevant”. We have also not seen any such POAs or documented compliance with these or the Governing Documents recorded in non-judicial foreclosures we defend, either.

So here’s what needs to be done: In all “Deutsche Bank as Trustee” instituted foreclosures, discovery needs to be demanded as to these alleged “powers of attorney”, all evidence of compliance therewith, all evidence of oversight/monitering to insure compliance, etc., and without such evidence, motions for summary judgment (and/or, to dismiss in judicial foreclosures) should be filed by the borrower’s attorney. If these documents start magically appearing (like post-filing “assignments” with backdated effective dates and backdated notaries started appearing), well, the attorneys know what to do.

The final thought: if DB issued such a warning to its servicers and agents, we have to believe that Wells Fargo, Bank of America, US Bank, and the other “securitized trustee banks” either have, are, or should be issuing similar warnings. If not, that is just more evidence of lack of authority and compliance with the law, leading to further defenses to foreclosure.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com  




November 1, 2010

We previously announced the FDN foreclosure defense seminar series on this website, including topic areas and registration requirements. In view of the literal slew of recent inquiries, we are essentially re-publishing this information at this time.

Each session consists of an entire day of instruction with seven (7) hours of CLE credit available to those whose state Bars accept CLE certification from other mandatory CLE states. The Florida Bar has accredited the entire series of 12 one-hour blocks for 12 CLE hours. However, the one-day sessions cover seven (7) of these in order to provide the most beneficial information for attorneys and paralegals currently involved in foreclosure defense. The entire series was developed to give both overviews and instruction for those who had never done or had only minimal foreclosure defense experience.

Registration is limited, for each session, to fifteen (15) participants who must be either licensed attorneys or paralegals employed by an identified law Firm, and will cover topic and practice areas relating to identification of issues and defenses, MERS, discovery, motion practice, filing and defending dispositve motions, mediation, post-judgment and post-sale challenges, eviction/UD/FED actions, and bankruptcy issues, among others.

The dates for the currently scheduled seminars are: Friday, November 19, 2010; Friday, December 17, 2010; and Friday, January 7, 2011. The cost of each session is $695.00 and includes breakfast, lunch, snacks, beverages, and parking in the building in addition to the notebook with forms for pleadings, discovery, and memoranda of law.

Registration forms which include directions to the site are available by sending an e-mail request to jeff@wjbarneslaw.com or the FDN e-mail address.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com


October 25, 2010

As those of you who follow this website know, on February 11, 2010, the Supreme Court of Florida entered an Administrative Order requiring all residential foreclosure complaints to be verified. Foreclosure mills have since been filing alleged “verified” complaints only on “knowledge and belief” and by persons who are not employees of the plaintiff or by employees of the plaintiff’s law Firm.

Judge Anthony Rondolino of the Sixth Judicial Circuit for Pinellas County, Florida says “no” to this procedure. In a 7-page written opinion, Judge Rondolino states that “any verification of a foreclosure complaint must be in conformity with F.S. 92.525 as construed by Moss v. Lennar Florida Partners, 673 So.2d 84 (Fla. 4th DCA 1996)” and that because of this he will reject verifications based on “information and belief” or using language indicating the declaration is only true and correct “to the best of my knowledge and belief”. He will also reject a “verified” foreclosure complaint if it is demonstrated that the person who verified it is counsel of record or an employee of the law firm.

Judge Rondolino’s rationale is grounded upon the Supreme Court of Florida’s directive that the Plaintiff  appropriately investigate and verify its allegations (in a foreclosure complaint), and an attorney should not become a witness substituting for these “essential client verifications”.

The case involved a series of assignments and a Deutsche Bank securitization, and facts which indicate that the 2010 post-filing assignment was from a company (New Century Mortgage) which went bankrupt years ago. The Court was concerned with the same concern we here have with assignments from bankrupt “lenders” and have previously raised to the courts in such situations: that there is no proof that the assignor had authority from either the bankruptcy court or the liquidating trustee to dispose of the specific asset of the bankrupt estate (the mortgage loan) to anyone, which would present a disputed issue of material fact precluding summary judgment.

The fact pattern in this case is all too common. What we applaud Judge Rondolino for is holding foreclosing plaintiffs to a real verification, not some phony series of conditional statements by persons unrelated to the transaction. Bravo! We hope that more Florida Judges will adopt this very sound reasoning.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com


October 22, 2010

Finally, proof positive has emerged as to something we have been talking about and telling the courts about for now into our third year: that those involved with the securitization of mortgage loans analyzed the loans in the pool, in advance, and determined (a) that certain mortgage loans would default; (b) when they would default; and (c) knowing this, they undertook measures to cover the realized losses ahead of time. At least that is what they told the investors.

From a Prospectus Supplement and Base file number 424b, the following was taken from the SEC’s website:

     In the following yield tables for classes B-2 and B-3, we assumed that:

       – scheduled interest and principal payments on the mortgage loans are received timely, except for mortgage loans on which defaults occur in accordance with the indicated percentages of SDA,

      – defaults on the mortgage loans in each pool will at all times occur at the same rate;

      – all defaulted loans are liquidated after exactly 12 months,

        – there are realized losses of a percentage (referred to in the tables as the “loss severity” percentage) of the principal balance at liquidation of the defaulted mortgage loans,

         –all realized losses are covered by subordination.

Here are some of the preliminary questions:

   (a)  how did the securitizers know in advance, for purposes of disclosing to potential investors and when the MBS had not even been released yet, which particular loans would default? (Answer: because the borrowers were only qualified at the initial or “teaser” rate and not qualified to meet the debt service on the life of the loan, especially when an Option ARM bump kicked in which guaranteed a default at that point);

   (b)  how did they know which defaults in each pool would occur “at all times at the same rate”? (Answer: see answer to first question above, and so that they could structure, in advance, the appropriate amount of insurance and protections to cover the losses realized by these pre-programmed defaults);

   (c)  what does it mean when they say that all defaulted loans would be liquidated after “exactly” 12 months (e.g. did they have a David Stern-style foreclosure mill (judicial states) or “successor” trustee and trustee sale company (non-judicial states) in tow ready to railroad foreclosures through the system in that timeframe no matter what)?

   (d)  what the realized losses would be in advance so as to properly structure the subordination protections. (Answer when you read other answers above)

Now we have it. Now we can go to the courts and show why the securitization discovery, which many courts in several states have already ordered produced, is not only relevant in securitization cases, but is also material to both defenses and damage claims (e.g. known predatory lending claims).

This is just the tip of an iceberg the size of Mount Everest. We will continue to provide more of this information as our researchers uncover more details.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com   



October 21, 2010

In an abrupt about-face, Bank of America, after publicly touting that it would halt foreclosures in all 50 states, has apparently tubed this position and is now resuming foreclosures full-bore, as it advised one of our contacts yesterday. According to the Bank of America representative, foreclosures went live in 23 states yesterday, and the rest as of today.

The announcement comes after Bank of America also publicly claimed that it had conducted an internal audit and investigation of its foreclosure actions, and that according to them, none of the foreclosures were legally infirm. We personally know this not to be true, for on the day that this pronouncement was made, Jeff Barnes, Esq. argued against a Bank of America motion filed in a case in Florida requesting a final judgment of “re-foreclosure” which had been filed because B of A (through the now infamous Law Offices of David J. Stern) had failed to name three junior mortgage lienholders in the original action. Guess B of A and Stern think that junior lienholders do not rate! Fortunately, the Judge denied B of A’s Motion.

We believe that the real reason that B of A is ramping up foreclosures is because (coincidentally, right?) that certain investors have now sued B of A, which came on the heels of the mortgage guaranty insurers’ demand that B of A repurchase some $20 billion of securitized mortgages. B of A apparently wants the investors to think that they are actually doing something. Are they? Let’s wait and see; this story seems to change by the day.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com


October 19, 2010

FDN’s network now has the benefit of recently acquiring computerized mortgage loan investigation and securitized mortgage loan trust software and special computer terminals which can track a mortgage loan’s history including its assignment to specific tranches inside of a trust. The information being revealed by this unique research tool is both fascinating and disturbing.

A sample of what our researchers are finding: loans which were assigned to multiple tranches within one securitized mortgage loan trust; the assignment of the loan to different trusts; the divison of the loan into parts across tranches, and more. What this means to foreclosure defense discovery is nothing short of monumental.

If a loan is assigned to different tranches and/or different trusts, with each tranche or trust having its own series of credit enhancements and insurances, this means the possibility of multiple levels of insurance for the same loan, which goes to prove what we have been arguing for years: that upon securitization, the mortgage loans were insured with multiple layers of insurance so that when the loan went into default, those in the placement chain could reap untold profits by having the same risk paid over and over and over again through multiple claims or reserves. Anyone who read through the SEC v. Goldman Sachs lawsuit knows this.

As such, any foreclosure defense should now hammer, hard, on ALL available credit enhancements, insurances, tranche assignments, and all agreements relating thereto. We will make a predition here: that very soon, there are going to be a series of cases where it is revealed, in discovery, that mortgage loans were paid 2, 3, 4, or more times on default and that the foreclosing party is simply trying to get paid a 5th or more time by stealing the borrower’s house under false pretenses and with material omissions and improper objections as to discovery related to setoffs (which objections we predict will be overruled once the judiciary is educated as to these matters). Once that happens, we see a literal tsunami of fraud upon the court claims and damage claims against the current foreclosure perpetrators.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com