SECURITIZATION AFFIDAVIT FILED IN ALABAMA FORECLOSURE CASE CONFIRMS EVERYTHING WE HAVE BEEN ARGUING FOR YEARS: NO POST-TRUST-CLOSING ASSIGNMENTS, NO ASSIGNMENT OF TOXIC LOANS, NO MERS ASSIGNMENTS

December 14, 2010

An affidavit has been filed in an Alabama foreclosure case of an attorney who actually did the securitization of a securitized mortgage loan trust of which  the Plaintiff in the case is the alleged “trustee”, which affidavit confirms numerous standing issues which we have been arguing for years. The Affidavit of Thomas J. Adams specifically sets forth, by chapter and verse, the various provisions of the PSA which were violated by U.S. Bank and MERS in an attempted assignment of a toxic loan to a securitized mortgage loan trust over a year after the trust closed.

The Affidavit sets forth the limitations, in the PSA, as to what assets the trust can acquire; how the trust can acquire them; and detailing how the post-trust-closing assignment of a toxic loan known to be in default at the time of the purported assignment is violative of the PSA on multiple levels, including destroying the trust’s REMIC status under the IRS rules. The Affidavit also examines the purported transfer of the note by MERS under MERS’ own rules and regulations, and concludes that the purported transfer of the note violates MERS’ own limitations. The Affidavit further sets forth that the PSA requires a clear chain of endorsements of the note all the way to the trust, and highlights that none of the required interim endorsements or a specific endorsement to the trust was ever made.

Thus, this evidence, which cannot be controverted as it is drawn from the very PSA governing the trust of which the foreclosing Plaintiff purports to be the trustee, demostrates that the loan did not, and could not, have ever made it into the trust, and thus the trust’s claiming to have standing to foreclose is essentially a fraud upon the court. Significantly, the opinion by New York Judge Arthur Schack in the matter of Deutsche Bank v. Rolando Campbell, issued in 2008, discussed many of these same issues.

As such, one of the most important steps in defense of foreclosures by banks “as trustee” for a securitized mortgage loan trust claiming to be a proper foreclosing party is a thorough examination of the PSA for the very types of prohibited conduct identified in the Adams affidavit, and filing of the PSA with the Court, if proper, where there is any evidence of post-trust-closing assignment; assignment of a toxic loan to the trust; or a prohibited MERS assignment.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FDN STOPS SALE IN YAVAPAI COUNTY, ARIZONA; CONTINUES TO CHALLENGE RULE 120 PROCEEDINGS IN COLORADO

December 13, 2010

A Yavapai County, Arizona Court Judge has granted the borrowers’ request for a Temporary Restraining Order cancelling a Trustee’s Sale which was scheduled for December 10, 2010. The papers were prepared by FDN’s Jeff Barnes, Esq. and the TRO obtained by local AZ counsel Gary Doyle, Esq., who is working with Mr. Barnes on cases in the Arizona counties of Maricopa, Yavapai, Pima, and Pinal.

Separately, a sale was cancelled in Colorado following Mr. Barnes’ filing of a Complaint and request for Temporary Restraining Order. Colorado’s Rule 120 procedure is also being challenged in a separate action filed by a Colorado attorney. It is our contention that in light of Colorado Supreme Court law from 1998 which expands the scope of matters to be considered at a Rule 120 hearing that Judges who confine such hearings solely to the issues of the presence of a default and whether the borrower is in the military are not following the mandates of the Colorado Supreme Court, thus denying the borrowers of due process.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

DECEMBER 17, 2010 FORECLOSURE DEFENSE SEMINAR CANCELLED BY REQUEST; NEXT SEMINAR SCHEDULED FOR JANUARY 7, 2011

December 13, 2010

Due to numerous requests, we are cancelling the December 17, 2010 foreclosure defense seminar, as there are apparently Christmas and office parties later this week. Of course, this was not known when we originally scheduled the seminar for 12/17. The next seminar is scheduled for Friday, January 7, 2011.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

E-FILING BECOMES MANDATORY IN COLORADO; FDN CHALLENGES FORECLOSURES IN COLORADO

December 6, 2010

Numerous coiunties in Colorado are adopting mandatory electronic filing requirements, not only for existing cases but for newly-filed cases as well. Elbert County adopted this system as of December 1, 2010; other counties already have the same requirement.

FDN’s Jeff Barnes, Esq. has been and continues to defend cases in Colorado, having been licensed in Colorado as of 1990. Mr. Barnes’ office has implemented a scanning system to comply with the new e-filing requirements of Colorado counties.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

PENNSYLVANIA ROUND II: FORECLOSURE MILL ATTORNEYS ADMIT UNDER OATH THAT NO LAWYER REVIEWED OR READ FORECLOSURE FILINGS; BANK OF AMERICA KNEW OF PRACTICE YET CONTINUED TO COLLECT “ATTORNEYS FEES”; THOUSANDS OF PENNSYLVANIA FORECLOSURES SUBJECT TO ATTACK AND RETURN OF “ATTORNEYS’ FEES” TO BORROWERS

December 6, 2010

(From an article in Daily Finance of 12/02/10 sent to us by one of our readers):

 Three partners of a Pennsylvania foreclosure mill (Goldbeck McCafferty and McKeever) have admitted, under oath, that no attorney ever read or reviewed thousands of foreclosures filed by the Firm, although the filings contained an “attorney” signature and the actions sought and collected “attorneys’ fees” in connection with the foreclosures. The article states that high-ranking Bank of America employees had actual knowledge of this procedure yet continued to reap significant “attorneys’ fees” payments from borrowers in these actions, with this practice being evident through as late as November 24, 2010.

Bank of America is the Goldbeck Firm’s top client. Although other foreclosure clients have stopped doing business with the Goldbeck Firm, B of A continues on, stating only that it is “evaluating its position” with the Firm.

The article goes on to state that literally thousands of Pennsylvania foreclosures are now subject to attack, including demands for return of “attorneys’ fees” paid by borrowers for work by non-lawyers.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FDN NETWORK EXPANDS TO COVER TENNESSEE, ADDITIONAL COUNTIES IN ARIZONA, AND INDIANA

December 3, 2010

The FDN attorney network continues to expand, with recent additions of law Firms which are now handling foreclosure defense in eastern and western Tennessee, an expanded area in Indiana, and the counties of Maricopa, Yavapai, Pima, and Pinal in Arizona. FDN will also shortly be adding attorneys in the Los Angeles, California area as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

PENNSYLVANIA COURT REVERSES BORROWERS’ MOTION TO SET ASIDE SHERIFF’S SALE AND STRIKE DEFAULT JUDGMENT IN FORECLOSURE BROUGHT BY WELLS FARGO AS SECURITIZED TRUSTEE: COURT NOTES SUSPECT ASSIGNMENT

December 2, 2010

A Pennsylvania Superior court, in an appeal from an Order of the Court of Common Pleas of Allegheny County, has reversed a trial court order which denied the borrowers’ motion to set aside a sheriff’s sale and strike a default judgment in favor of Wells Fargo as the trustee of a securitized mortgage loan trust. The case, Wells Fargo Bank N.A. as Trustee for the MLMI Trust Series 2005-FF6 v. Lupori, 2010 PA Super 205 (November 12, 2010) was confined to one issue: that being whether the trial court committed error as a matter of law in denying the borrowers’ motions because the record on the date of judgment lacked any evidence whatsoever to establish that Wells Fargo was the real party in interest and possessed standing to prosecute the foreclosure. The court held that the trial court so erred.

The Court noted that the Complaint alleged an assignment of the mortgage loan from First Franklin to First Franklin Financial Corporation, but made no mention of any other assignment, and nowhere in the Complaint did Wells Fargo identify itself as the owner of the mortgage. In opposing the borrowers’ motions, Wells Fargo asserted that it received an assignment of the Corporation’s rights to the mortgage on April 1, 2005. The Court found, however, that the Complaint did not comply with Rule 1147(a)(1) of the Pennsylvania Rules of Civil Procedure, and that the April 1, 2005 assignment was not in the record at the time of the default judgment, thus warranting reversal of the trial court’s order.

In reversing the trial court’s order, the Court cited to Pennsylvania law which holds that where a defect or irregularity is apparent from the face of the record, the prothonotary will be held to have lacked the authority to enter a default judgment and the default judgment will be considered void.

The Court noted in footnote 2 of its opinion that “The alleged assignment from the Corporation to Wells Fargo predates the assignment from the Bank to the Corporation. Wells Fargo argues on appeal that its assignment from the Corporation was a valid equitable assignment, despite the Corporation’s lack of an interest in the mortgage at the time it purportedly assigned the mortgage to Wells Fargo.” As the Court disposed of the matter on other grounds, the Court stated that “we need not reach this issue”.

We will thus say here what the Court hinted at with its descriptive language but which it declined to reach: the “purported” assignment to Wells Fargo was a fraud, period. It is readily apparent that Wells Fargo dummied up a fraudulent assignment in an attempt to cure the standing issue after the fact. Here, then, is proof positive of fraudulent conduct on the part of Wells Fargo in an attempt to sustain a foreclosure attempt, as we have seen time and time and time again across different jurisdictions in our cases.

We laud the Pennsylvania court for holding Wells Fargo to its burden and exposing this fraud to the public. 

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

 

FDN LOAN AND TRUST INVESTIGATION RESEARCH CENTER AND TEAM NOW IN PLACE

December 1, 2010

FDN announces that its mortgage loan and securitized mortgage loan trust investigation research Center and team are now in place and fully operational. The Center is located in Boca Raton, Florida and is being staffed by multiple paralegals who are associated with the FDN network of attorneys and who have been trained in the use of specialized software and access to databases which not only track the history of a loan, but also identify which tranches of a securitized mortgage loan trust the loan has been placed into and whether the loan actually made it into a particular trust (notwithstanding any alleged “assignment” to a trust by a foreclosing party, MERS, or otherwise).

Loan and securitized trust investigations are available at any stage of a foreclosure proceeding provided the requisite information as to the loan (e.g. loan number) and name of the trust are provided.

For more information, please e-mail us.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com 

 

 

FORECLOSURE DEFENSE ATTORNEY HANDBOOKS TO BE RELEASED DECEMBER 6, 2010

November 24, 2010

FDN will be releasing and making available the first edition of the Foreclosure Defense Attorney Handbook for attorneys and paralegals. The Handbook is designed for attorneys and law Firms interested in foreclosure defense or beginning a foreclosure defense practice.

Handbook topic areas will include:

   (a)  Initial case screening and client objectives;

   (b)  identifying preliminary defenses in foreclosure documents (judicial and non-judicial foreclosures);

   (c)  assignments of mortgages (judicial) and Deeds of Trust (non-judicial);

   (d)  Substitutions and Notices of Trustee or Foreclosure Sale (non-judicial);

   (e)  MERS

   (f)  The Complaint, Temporary Restraining Order, and Preliminary Injunction (non-judicial proceedings);

   (g)  The Answer, defenses, and Counterclaim (judicial proceedings);

   (h)  Discovery (Requests for Production, Interrogatories, and Requests for Admissions);

   (i)  Defending Motions to Dismiss and Motions for Summary Judgment.

Cost of the Handbook is $295.00 which includes 2-day Priority Mail shipment. Available only to attorneys and paralegals. Order forms are available on e-mail request. Please include state bar identification and number (if attorney) or name and address of law Firm affiliation (if paralegal). Shipments will begin Monday, December 6, 2010. Handbooks will be shipped within approximately 48-72 hours from receipt of completed order form and payment.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

COLORADO FORECLOSURE VICTIMS: BE AWARE OF YOUR RULE 120 HEARING

November 22, 2010

A November 18, 2010 article in the Boulder (Colorado) Weekly newspaper has attempted to alert homeowners in Colorado of an impending foreclosure crisis about to hit the state. The article also discusses the importance of what is known as a “Rule 120” hearing, which is a hearing where the foreclosing party requests the court to set a foreclosure sale date. The Rule permits the homeowner to oppose the request, and if there is no opposition, it makes defending the foreclosure much more difficult.

The problem with Rule 120 as it is worded is that it is very restrictive, only asking if there is a default and if the borrower is in the military. Fortunately, the Colorado Supreme Court issued an opinion back in 1989 stating that such a restrictive reading of the rule is improper, and that a court should permit matters such as the defense that the foreclosing party is not the real party in interest to be raised at the Rule 120 hearing.

Unfortunately, it seems, from the article, that Colorado District Court judges are not following the ruling of the Colorado Supreme Court and are letting banks literally get away with foreclosing without ever having to show that they own the Note and Deed of Trust through actual evidence, and simply presenting the Note at the hearing is sufficient even if there are serious questions as to how the foreclosing party came into the rights under the Note and Deed of Trust.

The article goes on to point out the inherent deficiencies in this type of process. Obviously the message here is that borrowers need to (a) be aware of their Rule 120 hearing and mount any proper challenge if warranted, and (b) make sure the judges know of the Supreme Court’s dictates on what is to be presented at a Rule 120 hearing.

Interestingly, this article comes on the heels of our receiving many inquiries from Colorado borrowers in the past few weeks who did not even know whether a Rule 120 hearing took place in their case or not. If it did and there was no notice of the hearing to the borrower, a due process challenge should be made. However, in view of the article, what appears to need to be done is an overhaul of the Colorado foreclosure system as a whole.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com