PENNSYLVANIA FEDERAL COURT RULES THAT HOMEOWNER HAS STANDING TO CHALLENGE AN ASSIGNMENT

June 21, 2019

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A Federal Judge in Pennsylvania has issued a lengthy ruling which provides, in part, that a borrower has standing to challenge an assignment in a case where Jeff Barnes. Esq. of W. J. Barnes, P.A. represents the homeowners. The opinion  cites the decisional law which was set forth in Mr. Barnes’ briefing to the Judge on the “bank’s” motion to dismiss. The “bank” has not appealed the ruling.

As those of you who have historically followed this website are aware, there is a divergence in the law across the country as to whether a borrower has standing to challenge an assignment of the loan. Several courts have taken the position that a borrower does not as the borrower is not a “party to the assignment”, which is ridiculous as it is the borrower’s loan which is being assigned. The Pennsylvania Federal Judge agreed that a borrower does have such standing.

Mr. Barnes has also successfully prevented a final judgment of foreclosure from being entered by filing a Federal rescission action. The homeowner, who Mr. Barnes represents in both the state court foreclosure litigation and the Federal litigation, filed the action prior to the foreclosure trial. The homeowner effected a rescission in 2009 well within the time period to do so, but never filed an action to enforce it. Mr. Barnes’ Firm was retained years later to defend the state-court foreclosure action. The state court Judge ruled that although the trial was to progress, no final judgment would be entered until the outcome of the Federal litigation, as if the homeowner prevails in the Federal action, the state court foreclosure claim is mooted.

Mr. Barnes is also involved in a significant appeal in the United States Court of Appeals for the 6th Circuit in a matter where the issue surrounds the application of the correct statute of limitations for purposes of filing an action to enforce a rescission as the TILA provisions on rescission do not contain a statute of limitations, and the decision of the United States Supreme Court in the Jesinoski v. Countrywide case did not address the issue of the time limitation to file an action to ENFORCE a rescission; the opinion only dealt with the proper period to effect a statutory rescission under 15 USC sec. 1635 and 1640.

Jeff Barnes, Esq. www.ForeclosureDefenseNationwide.com

JEFF BARNES BEING REQUESTED TO REPRESENT FOREIGN NATIONALS FOR BUSINESS-RELATED INTERNATIONAL LAW MATTERS

November 30, 2018

As those who have followed this website over the past ten (10) years know, Mr. Barnes has represented homeowners in more than thirty-eight (38) states in real estate litigation matters,and has acquired knowledge of the law in over 38 states in connection therewith.

Recently, Mr. Barnes has been requested to represent individuals from several foreign nations as to their real estate and business matters in the United States at the state and Federal levels, and in business matters in many states as well.

Mr. Barnes is thus expanding his practice into the area of international law and business, drawing on both his prior experience in handling deportation appeals at the District Court, BIA, and Federal Circuit levels, and as his wife, Ruth Barnes, who has been previously certified as a Florida Circuit Civil Mediator and Qualified Neutral by the State of Minnesota and who speaks four (4) languages fluently, is in the process of attending law school in Los Angeles, California concentrating in International Law and business transactions.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

 

OREGON CIRCUIT JUDGE DENIES MOTION FOR SUMMARY JUDGMENT FILED BY U.S. BANK IN VIEW OF ISSUES WITH ALLONGE

November 8, 2018

A Jackson County, Oregon Circuit Judge has denied a Motion for Summary Judgment filed by U.S. Bank as the claimed trustee of a BNC securitization Trust in a judicial foreclosure action. The borrower is represented by Jeff Barnes, Esq. and Elizabeth Lemoine, Esq. as local counsel. Mr. Barnes argued the matter in the Jackson County Circuit Court in person on November 5, 2018.

The case involves a Note which has no endorsement on the Note itself. US Bank is traveling on an “Allonge” theory (that the claimed Allonge is a form of endorsement). There is no evidence of when, if ever, the undated Allonge, which is on a separate paper, was physically attached to the Note, and U.S. Bank’s designated representative testified in her deposition, taken by Mr. Barnes, that she has no knowledge of the creation of the Allonge, when the alleged attachment thereof was made to the Note, or the authenticity and authority of the person whose signature appears on the Allonge. Mr. Barnes challenged such authority based on Section 3-308 of the UCC, which applies to any signature on a negotiable instrument.

The borrower, through Mr. Barnes, also raised the issue of authority of the undated Allonge given that BNC was a subsidiary of Lehman Brothers, which filed for Bankruptcy in 2007.

The Court issued a multi-page opinion yesterday denying U.S. Bank’s MSJ. The case now proceeds to trial.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FLORIDA JUDGE DENIES DEUTSCHE BANK’S MOTION TO STRIKE AFFIRMATIVE DEFENSES INCLUDING CHALLENGE TO AUTHORITY AND AUTHENTICITY OF SIGNATURES ON CLAIMED ENDORSEMENT AND SETOFF BY PAYDOWN OR PAYOFF OF LOAN UPON SALE TO SECURITIZATION TRUST

November 2, 2018

Yesterday, a Florida Circuit Court Judge denied a Motion to Strike the borrowers’ affirmative defenses involving issues of challenges to the authority and authenticity of claimed “endorsements” and an Allonge, and defenses relating to paydown or payoff of the loan upon sale to the securitization Trust in addition to standing defenses. Jeff Barnes, Esq. represents the borrowers.

Plaintiff’s counsel took the position that because Plaintiff “has the Note” and since the Complaint was verified, everything in the Complaint had been proven true for purposes of negating the borrowers’ affirmative defenses. The Judge disagreed, finding that there are factual issues in the defenses which are properly explored in discovery, and in view of Florida’s case law which disfavors striking affirmative defenses which are “fact-laden”.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

MERS ATTORNEY ADMITS UNDER OATH THAT MERS CANNOT ACT FOR A NON-FUNCTIONAL ENTITY AND CANNOT TRANSFER PROMISSORY NOTES; NEW MEXICO JUDGE DENIES SUMMARY JUDGMENT ON BORROWER’S DEFENSES INCLUDING UNILATERAL MODIFICATION OF CONTRACT AND CHALLENGE TO SIGNATURES ON CLAIMED ENDORSEMENTS

October 29, 2018

An attorney for MERSCORP has testified, in his deposition taken in a South Carolina case last Thursday, October 25, 2018, that MERS cannot act for a “non-functional” entity and cannot transfer promissory Notes despite claiming to do so in Assignments of Mortgages. Jeff Barnes, Esq. represents the homeowner together with local South Carolina counsel Bill Sloan, Esq. MERS is named in a claim filed by the homeowner challenging a foreclosure where his loan has been sold more than 8 times in 3 years and with ten changes of servicer. Mr. Barnes took the deposition in person, and also took the deposition of the Plaintiff’s designated representative.

The case involves an original lender which filed for Bankruptcy 1.5 years before the MERS Assignment of Mortgage was created, which AOM purports to transfer the Mortgage “together with the Note.” The MERS attorney/representative testified that MERS cannot act for a “non-functional” entity, and that the AOM cannot and did not transfer the Note (despite claiming to do so).

On Friday, October 26, 2018, Mr. Barnes argued in person against a Plaintiff’s Motion for Summary Judgment in the District Court for Santa Fe County, New Mexico, with the majority of the MSJ being denied. Mr. Barnes represents the homeowner together with local Albuquerque counsel Charles Davis, Esq.

The Court only granted summary judgment as to a few of the borrower’s 19 Affirmative Defenses, with the majority thereof remaining intact due to the presence of genuine issues of material fact as to the defenses which include a challenge to the authenticity and authority of the three claimed “endorsements” (one of which is “signed” by Steve Coffman, who sources report is under investigation for mortgage fraud and has fled the country, and the other two being “signed” by known “robosigners” of Countrywide), and the borrower’s claim that the loan contract was unilaterally modified rendering it unenforceable by the Plaintiff.

The ruling was made even without the deposition of the Plaintiff’s designated representative being taken, which the Plaintiff argued was “unnecessary” for purposes of summary judgment. The Court disagreed, finding that there were issues of fact raised by the borrower’s defenses which are the proper subject of deposition inquiry.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

JURY TRIAL SCHEDULED IN AMERICA’S WHOLESALE LENDER CASE INVOLVING CLAIMS OF UNFAIR AND DECEPTIVE TRADE PRACTICES AND FRAUD

September 5, 2018

A Lee County (Ft. Myers) Florida Judge yesterday granted the homeowner’s motion to set his case against Bank of America, MERS, and other Defendants for a jury trial over vigorous objection from counsel for the Defendants, who claimed that the right to jury trial had been allegedly “waived”. The Court also denied the Defendants’ Motion to Strike the jury demand. The homeowner is represented by Jeff Barnes, Esq.

The alleged originating lender is the non-existent America’s Wholesale Lender, identified in the Mortgage as a New York corporation. The Note has a claimed endorsement by another entity (Countrywide Home Loans, Inc. d/b/a Americas Wholesale Lender), which is not the original holder or lender identified in the Mortgage, and the Note contains no statement that the lender is a d/b/a of another entity. The Amended Complaint contains claims for Declaratory Relief, Fraud, Equitable Estoppel, Violations of Florida’s Unfair and Deceptive Trade Practices Act, and Quiet Title.

The Complaint, which was filed in 2015, demanded trial by jury as did subsequent amended versions of the Complaint. The Defendants never objected to or moved to strike the jury demand until March of 2018 after the homeowner filed a Motion and Notice to set the case for jury trial pursuant to the demand which was consistently made since 2015.

The Defendants took the position that the demand had been “dropped” as the demand did not appear at the end of the amended versions of the Complaint (in fact, it had been moved to another page thereof and the Defendants apparently failed to read the entire document), and also claimed that they “would have conducted discovery differently” had they known of the jury demand. The Court disagreed. It is of record that the jury demand had been repeated consistently for a period of three (3) years, and the claim of the Defendants that they “did not know” of the demand during the course of discovery was specious given the pleadings.

The Court indicated that the jury trial will be set in the latter part of November, 2018.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

FDN CELEBRATES ITS FIRST TEN YEARS

July 26, 2018

This month, FDN celebrates ten consecutive years of representing homeowners nationwide who are fighting foreclosure. The attorneys in our network continue to work tirelessly and diligently to challenge foreclosures in more than 35 states at the trial and appellate levels in both state and Federal courts, and will continue to do so especially as we have been advised from many sources that another 2008 mortgage debacle is on the horizon.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

SHELLPOINT REPRESENTATIVE ADMITS UNDER OATH THAT MERS IS NOT THE BENEFICIARY OF A DOT

July 26, 2018

Today, during a deposition of the designated representative of the Bank of New York as Trustee for a Countrywide CWMBS securitization, the representative (who is an attorney and employee of the servicer Shellpoint) admitted under oath that MERS is not the true beneficiary of a Deed of Trust (DOT) despite claiming to do so, as the Beneficiary is the lender and MERS is not and was never the lender. The representative also admitted that the Substitution of Trustee filed by a law Firm and signed by Shellpoint (as a dba of New Penn Financial) contained a false statement that the Note was payable to MERS. The representative further admitted that two letters sent to the homeowner which stated that the loan was owned by a CWALT Trust were also incorrect.

As those of you who follow this website know, the Supreme Courts of Oregon, Washington, and Montana issued opinions that MERS is not the beneficiary of a DOT despite claiming to be so, and the Washington case even permitted MERS to be sued for misrepresenting that it is the beneficiary. Today’s testimony is in line with these decisions. As MERS is not the beneficiary, it cannot act as such for purposes of executing Assignments of Deeds of Trust or Substitutions of Trustee in non-judicial foreclosure cases.

The homeowner is represented by Jeff Barnes, Esq. of W.J. Barnes, P.A. Mr. Barnes took the deposition of the representative this afternoon in Nashville, TN.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

UNETHICAL “BANK” LAWYERS STOOPING TO NEW LOWS

July 24, 2018

In just the last few weeks, we have seen more and more instances of unethical “bank” lawyers engaging in unprofessional and fraudulent conduct and actions designed to frustrate the homeowners’ defense of foreclosure actions. Of particular note:

(a)  In a case in Oregon where Mr. Barnes’ Firm represents the homeowners, the “bank” claimed for years that the original Note was lost, and confirmed this through a Lost Note Affidavit from a prior servicer and sworn deposition testimony of the “bank’s” representative. Three days before the trial, counsel for the “bank” advised that all of the sudden, the “original” Note had been located, but did not send a copy to the homeowners’ attorneys until the day before trial was to begin. The Court continued the trial, but the “bank’s” attorney has not yet provided the names of all persons who were involved in the miraculous discovery of the Note 72 hours before trial nor have they advised of the circumstances of the discovery,

(b)  In a case in New Mexico where Mr. Barnes’ Firm represents the Plaintiff homeowner, one of the attorneys in a fraud case who represents one of the Defendants is a material witness in the case as he signed Quitclaim Deeds in connection with the alleged fraud. His counsel agreed that he and his Firm must thus be disqualified from representing the Defendant client. He agreed in writing to have his deposition taken on August 22, but just now filed a “Motion for Protective Order” claiming that the deposition date was never discussed or agreed to. The New Mexico rules of professional conduct provide for the assessment of sanctions against attorneys who make frivolous claims. The homeowner will be seeking such sanctions.

(c)  In a case pending in New Jersey where the homeowners have retained Mr. Barnes’ Firm and his local NJ counsel, an Answer to the foreclosure Complaint was filed months ago and copied to counsel for the “Bank”. Notwithstanding this, the law Firm representing the “Bank” has just moved for a default judgment against the homeowners. Despite the homeowners’ local counsel bringing this error to the attention of the “bank’s” attorneys; they refused to withdraw their Motion and are seeking the entry of a foreclosure judgment without either a Motion for Summary Judgment being filed or a trial.

These are just a few examples of the kind of incredibly arrogant and dishonest conduct being engaged in by law Firms representing “banks” and servicers. It is time that the Courts begin assessing severe and punitive sanctions against these wrongdoers, who apparently have no respect for the rules of professional conduct.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

FORECLOSURE SALE STOPPED AT LITERALLY THE 11TH HOUR IN COLORADO

July 17, 2018

Moments ago, a Colorado District Court Judge entered an Order cancelling a Trustee’s (foreclosure) sale which was scheduled for tomorrow morning (July 18) in Douglas County, Colorado. The foreclosing party is Deutsche Bank as claimed Trustee of an American Home Mortgage securitization trust which closed in 2006. It is public knowledge that AHM filed for Bankruptcy in the United States Bankruptcy Court for the District of Delaware in 2007 which proceeding remains active to this day.

The case involves issues as to a MERS Assignment of the Deed of Trust and Deutsche Bank’s alleged legal ability to seek enforcement of the Note (issued in favor of the bankrupt American Brokers Conduit, which was a subsidiary of the bankrupt AHM).

The homeowners, who have lived in their home for over 18 years, are represented by Jeff Barnes, Esq. of W.J. Barnes, P.A. The homeowners were given less than 7 days’ notice of the sale of their home. Mr. Barnes filed a new action with supporting papers including an Emergency Motion for a TRO last Friday. The matter was assigned to the Judge yesterday, who just entered the TRO minutes before this post with a detailed ruling citing case law and factually that the homeowners had satisfied all of the necessary elements, both procedural and substantive, to be entitled to a TRO.

The matter now proceeds into discovery and the conversion of the TRO into a preliminary injunction so that no sale can occur while the matter is being litigated.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com