May 15, 2013: The post today was drafted with paragraphs and spacing, but has not published accordingly. Our website IT group has been contacted requesting to remediate this software issue.Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
May 15, 2013A Wilson County, Tennessee Circuit Judge has ordered that a threatened non-judicial Trustee’s Sale instituted by Bank of America is to be stopped. The homeowner is represented by Jeff Barnes, Esq. and local TN counsel John Higgins, Esq. Mr. Barnes prepared the Complaint, Affidavit, Motion, and proposed Findings of Fact and Conclusions of Law required by Tennessee law. Mr. Higgins argued the matter before the Court. Mr. Barnes will now seek admission to the case pro hac vice through Mr. Higgins.The Note and Deed of Trust was originated by a local Tennessee bank. The servicing (only) was later transferred to an “investor’s group” entity which demanded payments, which were made by the homeowner. Countrywide (CTW) thereafter sent a letter to the homeowner alleging that the loan itself was transferred from the “investor’s group” to CTW, although there was never any evidence that the loan itself had been transferred from the originating lender to the “investor’s group” to begin with.The homeowner was notified 3 years later that the owner of the loan was Fannie Mae, although no documents evidencing this purported transfer to Fannie were provided to the homeowner.
A few months later, BOA scheduled a Substitute Trustee’s Sale by notice in which it claimed that BOA was the “holder” of the Note, although BOA failed to provide any documentation to the homeowner evidencing a transfer from Fannie to BOA or evidence of authority from Fannie to BOA to do anything. This, of course, is on top of the lack of documentation showing that the loan was ever transferred to the “investor’s group” which then allegedly transferred it to CTW, and there is no evidence of any transfer of anything from CTW to anyone. To make matters more complicated, BOA claimed that the homeowner was in default in an amount which failed to account for the homeowner’s prior payments to the “investor’s group”, and BOA has failed to provide an accounting of such payments. Thus, the Complaint also makes a demand for this accounting.This case illustrates a general pattern we are seeing in current foreclosure cases: multiple alleged transfers of mortgage loans and/or servicing rights with no or conflicting information; allegations in documents which are unsupported; and attempts by downline purported successors to enforce Notes which they have not proven they have any rights to. Thankfully, more and more courts are starting to recognize this problem, and certain states have enacted procedural rules which require sworn affidavits from a foreclosing party as to proof of ownership or the right to enforce the Note before a foreclosure has been filed. We have been made aware that more such changes are coming in other states and courts as well.About time.Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
May 3, 2013
A proposed series of amendments to Florida Statute sec. 702.10 (CS/CS/HB 87) would radically alter and eliminate many rights for Florida property owners. The proposed amendments are in direct contravention to existing case law and provisions of the Florida Rules of Civil Procedure regarding summary judgment, and convert judicial foreclosure actions as to non-owner occupied properties to require a bond as a prerequisite to being able to defend the action. If the bond is not paid, the sheriff can oust any tenants, and judgment can be entered as well.
The proposed amendments first create a “probable cause” hearing at which time the court determines whether any timely filed defenses “create a genuine issue of material fact” or constitute “a legal defense to foreclosure”. As such, the court, without a formal summary judgment hearing and the protections set forth in Florida case law and Rules of Civil Procedure, can determine summary judgment issues WITHOUT A MOTION FOR SUMMARY JUDGMENT EVEN BEING FILED BY THE PLAINTIFF, and at that show cause hearing, the court can enter final judgment as well.
This smacks of unconstitutionality on several levels, and is an attempt by the Florida legislature to eviscerate decades of Florida case law and the Rules of Civil Procedure so that the banksters can foreclose at one hearing, and with the burden being on the homeowner to prove its defenses at a show cause hearing, totally reversing Florida law that the Plaintiff bears the burden of proving its case at trial or summary judgment.
It gets much worse. The proposed amendments also require that during the foreclosure of non-owner occupied property, and without the Plaintiff proving anything at all (including standing), the homeowner would have to make payments to the plaintiff or take out a bond FOR AN AMOUNT EQUAL TO THE UNPAID BALANCE OF THE LIEN BEING FORECLOSED INCLUDING ALL PRINCIPAL AND INTEREST. If the bond is not paid, the Sheriff can forcibly oust anyone in the property (e.g. the homeowner’s children who may be living there, aged parents who may be living there, etc.) As such, the amendments require a homeowner to pay money to the Plaintiff, who has proven nothing, for the privilege of being able to defend a foreclosure action on anything other than a primary residence.
This “bond requirement” is a creature of non-judicial foreclosures. Florida is a judicial state. This amendment would run counter to longstanding Florida law, would permit the courts to engage in disparate treatment of homeowners, make them a suspect class, and deny them the rights of any other civil itigant.
These proposed amendments are appalling. Florida homeowners should be shocked by what their elected representatives who are behind this bill are doing. We urge all Florida homeowners to immediately contact their representatives and tell them that if they approve this bill, they will not be re-elected.
Do it fast: the legislature is submitting this to the floor this weekend and is apparently going to try to railroad it through.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com