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

FLORIDA JUDGE DENIES MOTIONS FOR SUMMARY JUDGMENT FILED BY US BANK AS TRUSTEE, BANK OF AMERICA, MERS, AND NATIONSTAR IN AWL CASE

June 26, 2018

A Lee County (Ft. Myers) Florida Circuit Judge this afternoon denied Motions for Summary Judgment filed by US Bank as Trustee of a securitized mortgage loan trust, Bank of America, MERS, and Nationstar in a pre-emptive action filed by the homeowner which seeks Declaratory Relief and damages due to fraud and the Florida Unfair and Deceptive Trade Practices Act, and also seeks to quiet title to the homeowner’s property. The homeowner is represented by Jeff Barnes, Esq. of W.J. Barnes, P.A.

The Note and Mortgage are in the name of America’s Wholesale Lender, a purported “New York corporation” (which it never was), and the claimed “endorsement” on one version of the Note is not by AWL but by Countrywide Home Loans, Inc. d/b/a AWL. The homeowner was later directed to send payments to Bank of America (which he did) but after investigation, suspected that BOA had never legally succeeded to the interest of what he learned to be the non-existent AWL “a New York corporation”.

He initiated an action seeking the truth as to who his lender actually is, and for damages resulting from payments made to a non-holder and what he claims is a fraudulent lien on his property. The homeowners’ expert conducted significant research into the loan and determined that AWL was not the actual lender, and that the true lender was a third party located in Virginia.

The Defendants filed extensive Motions for Summary Judgment seeking to have all claims dismissed. Mr. Barnes file opposition papers totaling 57 pages of issues, documents, and case law.

After a 2.5 hour court hearing this afternoon, the Judge denied all of the Defendants’ Motions, holding up a pad which he showed to counsel where he had, during the course of the hearing, made a list of genuine issues of material fact. The matter will not proceed to trial. The homeowner has requested a jury trial, which the Defendants are opposing. A hearing on the matter is being scheduled.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

JEFF BARNES, ESQ. BEING REQUESTED AS A MEDIATOR IN FORECLOSURE CASES ACROSS THE UNITED STATES

This year, Mr. Barnes’ Firm and the FDN network celebrate their tenth consecutive year representing homeowners defending foreclosures throughout the United States in both state and Federal courts and at the trial and appellate levels. Mr. Barnes has been told by numerous attorneys representing banks and servicers, including attorneys working for large national foreclosure Firms, that he (Mr. Barnes) is the only attorney in the entire United States that they know of who represents homeowners in as many states as he does in all courts for as long as he has been doing so, and has more knowledge of the issues than any other attorney defending foreclosures.This has recently lead to numerous settlements of foreclosure cases.

As an apparently response to and respect for Mr. Barnes’ decade-long legal work including the establishment of the law as to MERS through victories in the Supreme Courts of Oregon and Montana and his tireless efforts to protect homeowners, Mr. Barnes has been recently requested to act as a mediator in foreclosure cases, and thus announces that mediation is now an additional service that his Firm offers.

Mr. Barnes was previously certified as a Mediator by the Supreme Court of Florida, and was also certified as a Qualified Neutral by the State of Minnesota.He has also attended countless mediations in foreclosure cases in numerous states over the past 10 years.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com