FIVE VICTORIES IN FLORIDA IN A SPAN OF 2 DAYS: SECURITIZATION DISCOVERY COMPELLED, ATTORNEYS’ FEES ASSESSED AGAINST PLAINTIFFS, AND SUMMARY JUDGMENT STRICKEN FROM THE DOCKET PENDING RULING ON OBJECTIONS TO DISCOVERY; PATTERN OF PREDATORY LENDING REVEALED IN ARIZONA CASE

March 17, 2011

FDN attorney Jeff Barnes, Esq. has scored five separate victories in five separate foreclosure defense cases in a span of less than 48 hours. On the afternoon of Monday, March 14, 2011, the Ft. Myers, Florida Circuit Court granted his Motions to Compel securitization, trust, standing, chain of title, real party in interest, setoff, and other discovery in four separate cases, which were filed by Citimortgage, Deutsche Bank, Fifth Third Mortgage, and Bank of New York by the David Stern, Marshall Watson, and Goldfarb law Firms. Entitlement to attorneys’ fees was granted in the Citimortgage, Deutsche Bank, and Fifth Third Mortgage cases. Each of the four cases involved “objections” to the borrower’s discovery which objections were filed months after the discovery request was filed, in one case the objections being filed 14 months after the discovery was originally served.

On the morning of March 16, 2011 in a separate case filed by Citibank as trustee for a securitized mortgage loan trust in Palm Beach County, the Court struck the motion for summary judgment filed by Shapiro & Fishman from the calendar. S&F filed the motion after engaging in a series of acts designed to thwart the borrower’s discovery attempts. S&F originally filed a Motion on behalf of Citibank for “additional time to formulate its responses” to the discovery requests, and then objected to 49 of the 50 categories of the discovery request. Mr. Barnes set a hearing on the objections and personally appeared, but when he left the courtroom briefly, the attorney for S&F wrongfully told the Court that Mr. Barnes “failed to appear”, resulting in an Order denying the Motion. Mr. Barnes alerted the Court to the actions of the S&F attorney, and the Court granted rehearing and reversed the prior Order. Mr. Barnes attempted to resolve the objections with S&F, but S&F’s response was only the forwarding of a “loan mod” package. When the borrower rejected the proposed loan mod, S&F filed and noticed a hearing on a Motion for Summary Judgment and refused to reschedule that hearing pending a ruling on the discovery objections per the Motion requesting the Court to do so which had been filed months earlier.

The Palm Beach Circuit Judge struck S&F’s summary judgment from the calendar and prohibited it being rescheduled until the discovery objections are resolved, which is being scheduled for a specially set hearing. This same discovery has already been compelled by courts in Oregon, New Jersey, and Florida on Motions filed by Mr. Barnes.

Last week, Mr. Barnes took depositions in Tuscon in an Arizona case which revealed a pattern of a “lender” not only luring unsuspecting borrowers into predatory loans which the lender knew the borrowers could not afford to service (but which the branch manager of the lender told them over and over again that they could), and in one instance, required a borrower to take out a $380,000.00 equity line on her home which had no mortgage on it to provide “additional security” for a construction loan after the borrower had already been lured into entering into a land acquisition loan with no conditions. It was only after the acquisition loan was entered into that the lender thereafter imposed the requirement of the equity line as a condition of the construction loan, the entirety of the equity line going right to the lender.

The borrower was thereafter foreclosed on both her home (on the equity line which was to be repaid from the sale of the new home) and the new property as well after the lender refused to release the remaining two percent (2%) of the construction loan to the general contractor so that the new home could be completed, a CO issued, and the property sold when the market was still active and commanding good prices. The lender’s purported excuse for not releasing the last 2% of the construction loan was “invoice issues” with the GC, which obviously could have been resolved after the completion of construction between the GC and the lender so that the home could be completed and sold. In another case, the lender’s “recommended” GC walked off the job after using all of the proceeds of the construction loan but only completing less than 65% of construction.

Next week, Mr. Barnes will be continuing with filing Motions in foreclosure cases in Colorado, Iowa, and Minnesota, and then traveling to New Jersey for court hearings in other foreclosure cases after which he will be attending court hearings in Hawaii before returning to Florida for more court hearings, including hearings requesting the imposition of attorneys’ fees against foreclosing Plaintiffs including JPMorgan Chase.

Mr. Barnes has also been recently approached by the WaMu Support Group for assistance in cases involving JPMorgan Chase.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide

PUBLIC TRUSTEE’S SALE STOPPED IN COLORADO ON LESS THAN 2 DAYS’ NOTICE

March 1, 2011

A Colorado District Court Judge today granted Jeff Barnes, Esq.’s Motion for a Temporary Restraining Order to stop a public trustee’s sale scheduled for tomorrow morning, March 2. The Order was entered less than an hour before the Court closed. The Motion was filed yesterday (Monday, February 28) after Mr. Barnes only received notice on Friday, February 25, 2011 that the sale was to be held tomorrow.

Separately, Mr. Barnes is now handling several cases in Colorado as lead counsel, and has been requested to become co-counsel in several others in connection with challenges to foreclosure including cases involving Colorado’s Rule 120 pre-foreclosure hearing procedure. Borrowers are asserting that prior case law of the Colorado Supreme Court governing the scope of Rule 120 hearings, which case law permits issues challenging a foreclosure to be asserted in the hearing, is not being followed by certain Colorado courts.

Mr. Barnes was also recently admitted pro hac vice in Knox County, Indiana, and will be filing for similar admission to the Maui, Hawai’i court in several cases there as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

HSBC HALTS ALL FORECLOSURES; POSSIBLE IMPOSITION OF FINES AND CIVIL MONEY PENALTIES ARISING OUT OF “DEFICIENT DOCUMENTATION” IN FORECLOSURES

March 1, 2011

HSBC Bank USA and HSBC Finance Corp. have halted all foreclosures until further notice, and may be faced with regulatory actions, fines, and penalties arising out of “certain deficiencies” in foreclosure procedures and mortgage loan servicing. The information was buried deep within HSBC’s 10-K report filed with the Securities and Exchange Commission. HSBC said it will be substantially addressing noted deficiencies in its foreclosure processes and will “correct documentation and refile affidavits where necessary” in the wake of issues involving robo-signing and other irregularities.

The issue here, obviously, is not HSBC “correcting” anything: it is that HSBC, like others such as Wells Fargo, Bank of America, and JPMorgan Chase, have finally been caught filing false and fraudulent documents in foreclosure proceedings resulting in frauds upon the various courts for which they should be appropriately sanctioned. Borrowers should zealously seek sanctions against such conduct including dismissal of a judicial foreclosure with prejudice or cancellation of a non-judicial foreclosure for fraud. Simply permitting the banks to “correct” what are outright fraudulent actions cannot be tolerated by any court, as there is no procedural rule or substantive law which permits a party to “correct” a fraud upon the court, especially a fraud in the form of a sworn affidavit such as an Affidavit of Indebtedness or Affidavit in Support of Summary Judgment. That is called perjury, and perjury cannot be “fixed”.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

DATES FOR UPCOMING FDN FORECLOSURE DEFENSE SEMINARS; FDN ATTORNEY NETWORK ADDS COUNSEL IN TENNESSEE, INDIANA, AND NORTH CAROLINA

February 18, 2011

FDN has confirmed the dates for its upcoming seminars in California and New Jersey.

The next Newport Beach, California seminar will be on Friday, March 4, 2011 and will be at the Newport Office Center located at 2901 West Coast Highway, Third Floor, Newport Beach, California.

The New Jersey area seminar will be on Friday, April 1, 2011 at the Holiday Inn located at 1171 King George Post Road, Edison, New Jersey 08337. Discounted room rates of $89.00 are available by calling the Holiday Inn at (732) 638-0005. Please mention the seminar of Friday, April 1, 2011.

Both seminars will cover updated case law, discovery, and recent developments in foreclosure defense including court rulings and findings by the Congressional Oversight Panel. The topic areas for the seminars and additional details are set forth on a January 24, 2011 posting on this website.

Attendance is limited to attorneys and paralegals associated with law Firms only. Registration forms are available by e-mail request to jeff@wjbarneslaw.com.

Separately, FDN has recently added new local counsel in several states. We are pleased to announce the addition of attorneys John Higgins, Esq. (Nashville, Tennessee area); Paul Ledford, Esq. (Vincennes/Terre Haute, Indiana area); and Brent Adams, Esq. (entire state of North Carolina) to the national network.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FDN’S JEFF BARNES, ESQ. ADMITTED PRO HAC VICE IN MICHIGAN; CONGRESSIONAL OVERSIGHT REPORT HIGHLIGHTS ILLEGALITY OF ASSIGNMENTS OF MORTGAGE LOANS TO TRUSTS WITHOUT COMPLIANCE WITH POOLING & SERVICING AGREEMENTS

February 16, 2011

FDN’s Jeff Barnes, Esq. has been admitted to the Washetnaw County, Michigan Circuit Court pro hac vice in connection with defense of a foreclosure involving a securitization. He is assisted by local Michigan counsel James Fraser, Esq.

On the subject of securitization, we have obtained a copy of the November 16, 2010 Congressional Oversight Panel’s Report examining the consequences of mortgage irregularities. The 127 page report discusses assignments, MERS, the problems with “robo-signers” and other document infirmities.

We find very significant the matters on page 19 of the Report, which state as follows regarding assignment of mortgage loans to a securitized mortgage loan trust:

        “As described above, in order to convey good title into the trust and provide the trust with both good title to the collateral and the income from the mortgages, each transfer in this process required particular steps. Most PSAs [Pooling and Servicing Agreements] are governed by New York law and create trusts governed by New York law. New York trust law requires strict compliance with the trust documents; any transaction by the trust that is in contravention to the trust documents is void, meaning that the transfer cannot actually take place as a matter of law [citing relevant provision of NY Estate Powers and Trust Law section]. Therefore, if the transfer of the  notes and mortgages did not comply with the PSA, the transfer would be void, and the assets would not have been transferred to the trust. PSAs generally require that the loans transferred to the trust not be in default, which would prevent the transfer of any non-performing loans to the trust now. Furthermore, PSAs frequently have timeliness requirements regarding the transfer in order to ensure that the trusts qualify for favored tax treatment.”

     This is what we have been arguing for years: that purported transfers of toxic, non-performing mortgage loans into a trust beyond the trust closing date and without strictly complying with the mortgage loan conveyance proviions of the PSA are void and of no force and effect, regardless of who attempts to make the transfer (e.g. MERS, who cannot make the transfer in any event for other reasons). The United States Congress has confirmed this. Perhaps more members of the Judiciary will ultimately come to the same conclusion.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

FDN ATTORNEYS STOP FORECLOSURE SALE IN HAWAII; HAWAII’S NONJUDICIAL FORECLOSURE PROCEDURE BEING CHALLENGED IN UNITED STATES SUPREME COURT; NY BANKRUPTCY DECISION BLASTS MERS

February 15, 2011

FDN attorneys Jeff Barnes, Esq. and Ronald Grant, Esq. have successfully stopped a foreclosure sale in Hawai’i, obtaining a temporary restraining order against the sale with the order being continued for a period of months. The case now proceeds to discovery. Papers were drafted by Mr. Barnes and court action was undertaken by Mr. Grant. Mr. Barnes will be applying for admission to the Hawai’i court pro hac vice.

Separately, attorneys have filed a Petition in the United States Supreme Court to challenge the constitutionality of Hawai’i’s nonjudicial foreclosure scheme, which is based on laws enacted in 1874. The scheme is being criticized as not providing proper due process for borrowers to challenge a nonjudicial foreclosure.

In our view, similar challenges should be mounted in all of the nonjudicial states. The nonjudicial foreclosure procedures, when enacted, never could have contemplated or imagined and are thus not designed to handle complicated legal and factual foreclosure issues such as securitization and MERS. Part of the problem lies with the fact that most of the trust deed acts define “beneficiary” as the party for whose benefit the deed of trust is given (that being the party which was the real lender), yet some courts have nonetheless permitted MERS to be the “beneficiary” despite the undisputed fact that MERS never lent any money or extended any credit.

This unsettled nature of this area of the law was just highlighted again in the February 11, 2011 decision from the United States Bankruptcy Court for the Southern District of New York in the matter of In Re Agard, Case No. 810-77338-reg, where the Court derailed MERS’ purported authority to transfer anything and held that MERS’ “nominee” status “and the rights bestowed upon MERS within the mortgage itself are insufficient to empower MERS to effectuate a valid assignment of mortgage”. The court cited many recent NY decisions which are in accord, as well as the Kansas and Arkansas cases we which have repeatedly discussed on this website.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FORECLOSURE DEFENSE SEMINAR IN NEW JERSEY TO BE RESCHEDULED

February 15, 2011

FDN’s Foreclosure Defense Seminar which was scheduled for Friday, February 25, 2011 is being rescheduled as Mr. Barnes has been called to a court hearing in a foreclosure defense case in Indiana for that date.

The new date will be a Friday in March. We will update as soon as the date is confirmed.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

MIAMI-DADE COUNTY, FLORIDA CIRCUIT JUDGE SLAMS FORECLOSURE MILL BEN-EZRA & KATZ, P.A. FOR PERPETRATING FRAUD UPON THE COURT, DISMISSES FORECLOSURE WITH PREJUDICE AND ENTERS ORDER COMMANDING OWNERS OF BEN-EZRA & KATZ TO EXPLAIN TO COURT WHY THEY SHOULD NOT BE HELD IN CONTEMPT FOR PRESENTING FALSE PLEADINGS TO AND MISLEADING THE COURT

February 11, 2011

In a stinging 3-page Order, a Miami-Dade County, Florida Circuit Court Judge has dismissed a foreclosure with prejudice after finding that the Plaintiff’s Firm, known foreclosure mill Ben-Ezra & Katz, P.A., filed an Assignment of Mortgage with the Court which the Court found to be “a complete sham” and “fraudulent”. The assignment was found to have not been properly executed as it was “signed” on January 6, 2008 but “notarized” over a year later on January 20, 2009 with a crossed-out Notary and attaching a “California All-Purpose Acknowledgement” dated in 2009. The Court held that “the filing of this document is also a Fraud upon the Court.”

The Court further found that the filing of an “Original Note and Original Mortgage” months after the Plaintiff represented to the Court in its Complaint that the original Note and Mortgage had been lost was “in and of itself a Fraud Upon the Court.” The Court noted more significantly: “However, this pales in comparison to the subsequent outright fraud presented to the Court in order to pursue a foreclosure action against the Defendant and mislead the Court to obtain the entry of Final Judgment.” What occurred was that the “original” note and mortgage filed by Ben-Ezra & Katz and certified to be the originals thereof actually belonged to another person with another property, and had nothing to do with the pending case.

The final judgment which had been entered against the borrower was vacated by the Court “for Fraud” under Florida’s post-judgment relief rule.

The Order further commanded the owners of the Ben-Ezra & Katz Firm to appear before the Court to explain why they should not be held in contempt for not only failing to appear for a duly noticed hearing, but also for “Presenting false pleadings, misleading the Court, and wasting the Court’s time”.

Kudos to this court for making public the absolute fraudulent conduct of this known foreclosure mill, which we have also litigated against and continue to litigate against.

We publish this decision not only for its substance, but in view of the fact that the Ben-Ezra & Katz Firm is currently in the process of taking over foreclosure matters once handled by the now infamous Law Offices of David J. Stern, which was terminated by many of its clients after having been found by the Florida Attorney General to have committed a litany of fraudulent acts in foreclosure actions. Guess the clients who fired Stern wanted a Firm just as unscrupulous as the one they discharged.

The significance of this opinion is that it was rendered on the borrower’s Motion to vacate a prior judgment. If Ben Ezra & Katz engaged in such blatent fraud in one case, chances are that they probably did it more than once, so borrowers who were foreclosed on by Ben-Ezra & Katz should carefully examine their case for possible relief from any judgment. We here will be doing so, for sure.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

REGISTRATION FOR FDN FORECLOSURE DEFENSE SEMINAR IN NEW JERSEY CLOSES ON FRIDAY, FEBRUARY 18, 2011

February 11, 2011

Final registration for FDN’s Foreclosure Defense Seminar scheduled for Friday, February 25, 2011 in Edison, New Jersey will close as of Friday, February 18, 2011, one week from today, as the facility needs a firm count for catering purposes and FDN needs a firm count for preparation of the Handbooks for the seminar. Registration Forms are available by e-mail request to jeff@wjbarneslaw.com.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

APPELLATE DIVISION OF NEW JERSEY SUPERIOR COURT REVERSES SUMMARY JUDGMENT IN FAVOR OF WELLS FARGO, FINDING THAT STANDING TO FORECLOSE WAS NOT ESTABLISHED

February 11, 2011

The Appellate Division of the Superior Court of New Jersey has issued a 13-page written opinion in the matter of Wells Fargo Bank, N.A. v. Ford, Docket No. A-3627-06T1 (approved for publication January 28, 2011) which reversed a summary judgment in favor of Wells Fargo, finding that Wells Fargo had failed to establish standing. The opinion is significant for many reasons, among them being that any attempt by Wells Fargo to satisfy standing as a “holder” of the note upon remand would defeat any “holder in due course” status.

The original Note was in favor of Argent Mortgage Company, well known to have sold off its loans into securitizations. In its Complaint, Wells Fargo claimed to have been assigned the mortgage and note but that the assignment had not yet been recorded. The borrower defended with counterclaims and questioned the validity of the purported assignment.

Wells Fargo moved for summary judgment, submitting a certification from a person who identified himself as a “Supervisor of Fidelity National as an attorney in fact for HomeEq Servicing Corporation as attorney in fact for Wells Fargo”. Although the certification alleged knowledge of the amount due; that Wells Fargo was a holder and owner of the note and mortgage; and that the copies thereof were “true copies”, the Court noted that the certification did not indicate the source of this purported knowledge. Wells Fargo also relied upon an “Assignment of Mortgage” which the Court noted was not authenticated in any manner.

The Court concluded that Wells Fargo failed to establish its standing to pursue the foreclosure action and reversed the summary judgment, holding that the documents that Wells Fargo relied upon in support of its motion for summary judgment were not properly authenticated and that the certification was not based on personal knowledge as to the alleged “holder and owner” allegations, or how the person who signed the certification obtained his alleged knowledge. The Court also held that the purported assignment of the mortgage, which must be produced in New Jersey to maintain a foreclosure action (citing New Jersey statute), should not have been considered by the trial court as it was not authenticated by an affidavit or certification based on personal knowledge.

Significantly, the Court also noted that even if Wells Fargo could, on remand, establish its standing as a holder of the note through an indorsement from Argent “at this late date”, Wells Fargo would not thereby become a holder in due course that could avoid whatever defenses the borrower would have to a claim by Argent because Wells Fargo is now aware of these defenses.

The significance of this opinion; the new foreclosure rules recently implemented in New Jersey; and other court rulings in New Jersey including the discovery and dismissal rulings obtained by FDN attorneys Jeff Barnes, Esq. and Michael Jacobson, Esq. in several New Jersey foreclosure actions, will be discussed at the upcoming foreclosure defense seminar which is scheduled for Friday, February 25, 2011 in Edison, New Jersey. Registration forms for this seminar are available upon request by e-mail.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com