W.J. BARNES, P.A. JOINS FORECLOSURE RESOLUTIONS AND SOLUTIONS LLC

October 6, 2020

W.J. Barnes, P.A. has joined Foreclosure Resolutions and Solutions, LLC, which is a multi-service company providing debt and loan negotiation, business management, foreclosure defense, real estate, relocation, expert witness, and FIRPTA services to clients worldwide. The LLC was established by Dr. Andre Larabie and Jeff Barnes, who have worked together for over twenty (20) years.

The website is www.Foreclosureresolutionsandsolutions.com. Profiles of the Team are displayed on a dedicated page. Narratives describing specific aspects and events in a foreclosure are also on separate pages under their respective titles.

Dr. Larabie is an internationally recognized expert in debt restructuring and negotiation and business management, and is the author of several books. Mr. Barnes has been a full-time litigator for over 32 years who has litigated in 39 states and at both the trial and appellate levels in state and Federal Courts and has established law in several states. Dianne Jennings is a real estate expert and financial strategist and a Certified Financial Education Instructor who works with the National Financial Educators Council and served as an instructor at the Brookshire Professional Training Institute. Richard Kahn spent over 35 years on Wall Street being involved with mortgage loan origination and securitization and was also a residential mortgage lender who has written several books on securitization. He currently serves as an expert witness in foreclosure cases, and is also an expert in assisting international clients with obtaining refunds of taxes imposed by the Foreign Investors in Real Property Tax Act (FIRPTA) and state law equivalents which taxes are imposed on foreign nationals who purchase and sell real property in the United States.

FRS LLC has already received numerous requests for assistance, and testimonials have been provided from satisfied clients of members of the Team.

Mr. Barnes will continue to represent homeowners and renters through W.J. Barnes, P.A. as he has done for over 12 consecutive years to date.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

CLASS ACTION LAWSUIT PROPOSED AGAINST CHINA FOR CAUSING FORECLOSURES AND EVICTIONS

May 18, 2020

Class-action lawsuits have been filed against China and related entities for wrongful deaths caused by the grossly negligent and/or intentional conduct of Chinese entities which operated and engaged in an ultrahazardous activity (the Wuhan laboratory(ies) which intentionally collected and developed and hoarded over two hundred (200) separate viruses collected from a “bat cave”). One such lawsuit, which was filed approximately one month ago, already has Fifteen Thousand (15,000) plaintiffs.

It is more than obvious that the COVID-19 virus has directly and proximately caused millions of homeowners to not be able to pay their mortgage loans or rent. Our network has been approached to develop and file a class-action lawsuit against the appropriate Chinese authorities, including the Chinese government, for wrongfully causing millions of foreclosures and evictions in the United States, and to name the proper Chinese entities as Third-Party Defendants in any foreclosure or eviction action where the precipitating cause of the inability of a homeowner or renter to pay their mortgage loan or rent was the COVID-19 virus and its downline effects (e.g. unemployment, reduction of income, loss of business, etc.)

Anyone who may be interested in becoming a part of this effort should reach out to us at the “Contact Us” link above.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FORCE MAJEURE AND IMPOSSIBILITY OF PERFORMANCE DEFENSES RIPE FOR DETERMINATION BY COURTS IN VIEW OF NO PRECEDENT AS TO A COVID-19 TYPE EVENT

May 15, 2020

Mr. Barnes has been participating in numerous CLE courses concerning force majeure and impossibility of performance defenses. The presentations so far have focused on narrative and cases involving assertion of the defenses in the non-foreclosure arena and have not, as of yet, specifically focused on the application of these defenses to foreclosures or evictions (aka FED and UD cases) in the context of a pandemic. The probable reason is that there has never been a pandemic in recent history which has affected homeowners in the manner that COVID-19 has, and thus there is no case law on the application of these defenses in the present context. Many cases involving foreclosure or eviction issues where these defenses will be raised will thus be “cases of first impression” in the courts.

All of the presenters agree on one thing: that there is going to be a lot of litigation and a lot of new law created as to the application of these defenses to foreclosure and eviction proceedings (which are scheduled to resume next month in numerous states). Several of the presenters have also commented that special COVID-19 mediation procedures will probably be set up as well.

To this end, Mr. Barnes has teamed up with Will Younghans of Coast to Coast Consultants LLC, and have formed a new company which is geared specifically toward assisting homeowners facing foreclosure or eviction as a result of the effects of COVID-19. The company will be involved in the development of new law centered around the defenses of force majeure, impossibility of peformance, and other defenses applicable to COVID-19 related foreclosures and evictions.

Mr. Barnes and Mr. Younghans, who have already worked together for several years on many foreclosure-related cases in several states, will also be assisting homeowners in COVID-19 related loan negotiations and mediations. Mr. Younghans has years of nationwide experience in assisting homeowners with loan modifications and workouts.

Requests for assistance can be made through the “Contact Us” link above.

Jeff Barnes, Esq., ForeclosureDefenseNationwide

FORECLOSURE AND CORONAVIRUS: FORCE MAJEURE, IMPOSSIBILITY OF PERFORMANCE, AND OTHER ISSUES

May 6, 2020

The COVID-19 virus pandemic is having, and will continue to have, a significant effect on foreclosures, evictions, and other collection and possessory actions throughout the United States and the world in an unprecedented way. Although most states have imposed temporary moratoriums on foreclosures and evictions, the restrictions will eventually be lifted, at which time foreclosures and evictions are expected to spike rapidly.

A mortgage and a lease are contracts. Thus, contract-related defenses such as force majeure and impossibility of performance become important if in fact a homeowner or renter was not able to make their payments due to the effects of the virus which then caused the foreclosure or eviction. These are very fact-specific defenses and require proper notice, documentation, and recording of events, and depend on individual circumstances.

As the COVID-19 pandemic is something that has not affected us in modern times, there is a dearth of case law on the force majeure and impossibility of performance defenses outside of the commercial sales/sale of goods arena (where, for example, the defenses come up due to a livestock plauge, revolution or governmental action in the seller’s or buyer’s destination country, etc.). Thus, an entire new area of case law will be developed in the coming months (and probably years) as to how these defenses work in the mortgage loan and rent areas of the law.

Mr. Barnes has already developed several theories of defense for the upcoming onslaught of foreclosures and eviction filings, and is actively engaged in CLE courses on the issues. One thing is for certain: these defenses are very complex, so they should not be randomly asserted without the benefit of an attorney, especially as doing so improperly will lead to bad case law decisions as took place across the nation after the 2008 crash when homeowners tried to advance securitization-related defenses on their own without the assistance of an attorney. Force majeure and impossibility of performance issues, like securituzation, are “rocket science”, and cannot be learned by surfing the internet over a weekend.

We will continue to provide information as to the force majeure and impossibility of performance issues as more information becomes available.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FORECLOSURES AND MORTGAGE LOAN DEFAULTS SET TO RISE SHARPLY DUE TO DOWNLINE EFFECTS FROM CORONAVIRUS

March 16, 2020

It is no secret that there will be significant downline effects from the business closings, layoffs, and loss of income as a result of the coronovirus. Governor Cuomo of New York announced today that all restaurants, bars, and casinos in New York, and probably the tri-state area (New York, New Jersey and Connecticut) will be closing at 8:00 p.m. this evening. Thousands of employees who depend on income from tips will thus be experiencing financial issues, as will the owners of, investors in, and suppliers to restaurants, bars, and casinos.

We have thus been advised to expect a spike/increase in notices of default and foreclosure threats and filings to occur within the next 30-60 days. Fortunately, the effects of the virus do not, at least at this point, appear to be as extreme as the financial meltdown of 2008, but sources advise that the worst is not over and in any event, the downline effects from even a 30-day shutdown of businesses will have multiple ripple effects on the lives of homeowners in connection with their mortgage loans.

Reuters news agency announced yesterday that the Federal Open Market Committee directed the Open Market Trading Desk to increase holdings of mortgage-backed securities by at least $200 Billion beginning today. Homeowners may thus be receiving communications that they loan has been sold and/or that their servicer is changing.

We will be emphasizing efforts to try to help homeowners negotiate a resolution to any default or threats of foreclosure early on and without lengthy litigation. We have entered into a business relationship with Dr. Andre Larabie, a professional debt negotiator with over 25 years of experience who has handled and resolved debt claims all over the world. Our team will be working towards steering any threats of foreclosure into a resolution arena (e.g. Mediation) early on to help homeowners.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

SUMMARY JUDGMENT DENIED IN CITIBANK SECURITIZATION CASE

January 24, 2020

A Palm Beach County Circuit Court Judge today denied Citi’s Motion for Summary Judgment, finding that there are genuine issues of material fact as to whether the alleged “original” Note is in fact an original. Citi had filed a foreclosure action in 2009 in which it represented to the Court that the Note was lost, but later claimed to have found it. The 2009 case was dismissed, and Citi refiled in 2017. Jeff Barnes, Esq. of W.J. Barnes, P.A. represented the homeowners in the 2009 case and also represents them in the 2017 case.

An attorney from the law Firm representing Citi claimed to have obtained the “original” Note from the court file in the 2009 case. However, the Clerk’s notes state that although Citi’s filing stated that the Note was an original, it was a copy. The homeowners requested and were granted a personal inspection of the claimed “original” Note, and have filed Affidavits that the claimed “original” is not an original based on numerous factors. To date, no affidavits have been filed by Citi to contradict the homeowners’ affidavits.

The homeowners have attempted to subpoena the attorney who claims to have obtained the “original” Note from the 2009 case court file, but shortly after the homeowners filed their Affidavits, that attorney suddenly no longer worked for the law Firm, and he has been avoiding service of a deposition subpoena.

The Judge found that based on the conflicting positions of the parties and the fact that the homeowners filed Affidavits that there are genuine issues of material fact as to whether the claimed “original” is in fact and original. There are also numerous other issues concerning claims of setoff, standing, and unilateral modification of the loan documents.

The case has been set for trial for May 8, 2020.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

Victories in Washington and Oklahoma: one summary judgment vacated, another (second) summary judgment denied

December 18, 2019

Jeff Barnes has successfully vacated a summary judgment in Tacoma, Washington and caused a second summary judgment motion to be denied in Oklahoma City. Both cases involve Wilmington Savings Fund Society securitizations.

In the Tacoma case, the Plaintiff filed a Motion for Summary Judgment. Shortly thereafter and just before the hearing on the motion and unknown to the homeowner at the time, the homeowner’s local counsel was suspended from the practice of law. Local counsel was to have opposed the MSJ and attended the hearing as Mr. Barnes (PHV co-counsel for the homeowner) was scheduled to be in trial in another case.

The local counsel did not request a continuance of the hearing; did not advise the Court of her suspension; and did not appear at the hearing. The Court granted the MSJ despite the homeowner’s pro se request at the hearing that it be continued as her attorney did not appear and did not advise the homeowner that she (local WA counsel) would not be appearing.

Mr. Barnes and the client only thereafter learned of the suspension of local counsel from opposing counsel in another foreclosure case where the same (suspended) local counsel was representing a homeowner. The Tacoma homeowner thereafter obtained new local WA counsel, and Mr. Barnes immediately filed Motions to vacate the summary judgment based on the exceptional circumstances of the (suspended) local WA counsel (a) failing to notify the client or the court of her suspension; (b) failing to request a continuance of the hearing so that the client could obtain new local counsel; and (c) failing to prepare any papers to oppose the MSJ prior to her suspension.

The Court granted Mr. Barnes’ Motions finding that the circumstances constituted the type of exceptional circumstances which warranted relief pursuant to CR 60(b).

Yesterday, an Oklahoma City District Court Judge denied the Plaintiff Wilmington Savings Fund Society’s second Motion for Summary Judgment. A prior MSJ had been filed and opposed by Mr. Barnes. The Plaintiff never requested a hearing on the first MSJ and simply filed a second MSJ.

The Judge who heard the MSJ granted it without permitting Mr. Barnes to present his case; made a decision not based on the law; and took the position that “your client owes somebody money, right?” Mr. Barnes filed a Motion for Reconsideration of this ruling, which was granted by the new Judge who took over the case.(See our post of October 4, 2019 below).

Yesterday, Mr. Barnes re-argued the MSJ detailing the numerous genuine issues of material fact presented by the Plaintiff itself and the controlling Oklahoma law including that related to allonges (as there is no endorsement on the Note and Wilmington started with one allonge when the case was filed and added 3 more as the case progressed, and as Oklahoma has an allonge statute). The Judge denied the MSJ and has ordered discovery to proceed.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

VICTORY IN OKLAHOMA: DISTRICT JUDGE GRANTS REHEARING WHICH RESULTED IN VACATUR OF PRIOR GRANT OF SUMMARY JUDGMENT TO WILMINGTON SAVINGS FUND SOCIETY AS TRUSTEE OF SECURITIZATION TRUST

October 4, 2019

This morning, an Oklahoma City District Court Judge granted the homeowners’ Motion for Reconsideration of a prior grant of summary judgment in favor of Wilmington Savings Fund Society as the claimed “trustee” of a securitization trust. The case involves an original lender which filed for bankruptcy in 2009 and four claimed allonges, 3 of which were filed after the Complaint was filed and as the Plaintiff kept being substituted.

Jeff Barnes, Esq. represents the homeowners together with local Oklahoma City counsel Scott Harris, Esq. Mr. Barnes prepared the Motion for Reconsideration and argued it in person in the Oklahoma District Court this morning.

A prior Judge had granted Wilmington’s MSJ without even permitting Mr. Barnes to make his argument and without hearing any evidence as to whether Wilmington had satisfied Oklahoma’s statutory and decisional law requirements to establish an allonge as a legal form of endorsement, commenting only that “well, your client owes somebody money, right?”. The prior Judge also did not permit an examination of the alleged original Note or allonges at the prior hearing, a fact which Wilmington’s counsel admitted at this morning’s hearing.

The Judge today recognized the issues involved and thus granted rehearing, which served to preclude Wilmington from presenting the case for final adjudication today which Wilmington had requested.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

INCREDIBLE SETTLEMENT REACHED IN FEDERAL CASE; W.J. BARNES, P.A. RETAINED TO PREPARE SECOND SCOTUS PETITION

September 10, 2019

An incredible settlement was reached for husband and wife homeowners in a Federal case where an investment bank, as the claimed “trustee” of a securitization Trust, sought foreclosure. Although we cannot reveal the terms of the settlement or the identity of the homeowners or the foreclosing bank, the settlement resulted in the bank agreeing to “eat” more than 65% of its claim due in significant part to the efforts of Mr. Barnes (who represents the homeowners) in obtaining an Order from the Federal Judge which placed the bank in serious jeopardy of being able to prove its case. Mr. Barnes’ inquiries of the bank’s witness during a deposition of the witness revealed the Bank’s weaknesses in is case, which the Federal Judge found to be significant.

W.J. Barnes, P.A. has also been retained by homeowners on two separate cases where Mr. Barnes has prepared Petitions for Certiorari Review to the United States Supreme Court. Mr. Barnes completed both Petitions in the span of 30 days. The first case involves a challenge to Colorado’s “Rule 120” non-judicial foreclosure process. The second involves a determination by the Tennessee appellate courts which upheld a prohibition and preclusion on Mr. Barnes’ cross-examination of the bank’s witness, during a deficiency trial, as to the manner by which foreclosure sales were conducted and the prices obtained for the commercial properties sold where the witness testified to these matters on direct examination. The law of both Tennessee and the U.S. Supreme Court permits cross-examination of a witness even on matters which are otherwise inadmissible if the witness opens the door as to the matters on direct examination.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

PALM BEACH COUNTY CIRCUIT JUDGE PERMITS COUNTERCLAIM FOR UNILATERAL MODIFICATION OF CONTRACT TO STAND

July 18, 2019

This morning, a Palm Beach County, Florida Circuit Judge denied a Motion to Dismiss filed by Citibank, N.A. as trustee of a securitization trust which sought to dismiss the homeowners’ Counterclaim for Declaratory Relief sounding in unilateral modification of contract. Jeff Barnes, Esq. of W. J. Barnes, P.A. represents the homeowners. Mr. Barnes filed the Counterclaim as part of the homeowners’ Answer and Affirmative Defenses to Cit’s Complaint for Foreclosure. He also briefed the matter and argued it in open court this morning.

In denying Citi’s Motion to Dismiss, the Judge stated that the Counterclaim “smacks of factual issues” relating to the acts undertaken by Citi which resulted in the unilateral modification of the loan contract without prior notice to or consent of the homeowners..

The homeowners have alleged in the Counterclaim that in connection with their loan being the subject of a securitization that the loan was converted from a regulated, residential mortgage loan transaction to an unregulated commercial investment contract, and that numerous matters in connection therewith were never disclosed to the homeowners and thus they did not consent to these changes which modified the loan contract. The Counterclaim also alleges that the “your loan may be sold” language in the loan contract is vague and misleading, and does not properly disclose numerous material matters which, if they had been disclosed to the homeowners pre-contract, would have resulted in the homeowners not agreeing to sign the loan documents.

Mr. Barnes, who developed this theory and argument, is currently advancing it in numerous foreclosure actions across the United States. A Tennessee Judge also previously denied a Motion to Dismiss the unilateral modification of contract claim which Motion was filed by Bank of New York Mellon. The Judge found that the Complaint, filed by the homeowner, stated a cause of action for unilateral modification of contract.

Almost all states have established case law which consistently holds that a contract which is unilaterally modified without consent, without knowledge of the other party, without any “meeting of the minds”, and without any additional consideration for the modification is unenforceable.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com