June 13, 2013A Pinellas County (St. Petersburg) Florida Circuit Judge has overruled the majority of a Motion for Protective Order filed by JPMorgan Chase Bank, N.A. against the homeowner’s written discovery. The homeowner is represented by Jeff Barnes, Esq., who argued the matter in court and prepared the legal memoranda requested by the court following the hearing.After months of consideration following full briefing, the Court compelled JPM to produce the following documents, among others: all documents relating to the securitization including all PSAs, Master Purchasing agreements, Custodial agreements, Guarantee agreements, and Release of Document agreements; all policies of insurance including but not limited to private insurance, LPMI and NIM policies, mezzanine policies, ISDA policies and credit default swaps; all documents demonstrating any payments against the loan by any source whatsoever; documents as to suspense or unapplied transactions accounts (where banks park payments in order to reflect no payment on the loan, thereby creating a “default” situation on paper); all documents setting forth any assignment of the loan to any SIV, SPV, CDO, CMO, or credit default swap; all documents demonstrating any grant of authority of any kind to MERS; all documents evidencing any grant of authority from the FDIC to JPM relating to the loan and documents setting forth the transfer of the loan from a WaMu securitization to JPM; and any documents evidencing the application of TARP monies including request for such funds based in part on a claimed default of the loan.We have been arguing the relevance of the documents across the US for years in terms of both the standing-related issues and issues related to setoffs against the claimed amount of default and how the default was created. This ruling is the second breakthrough ruling recently obtained (the other was that obtained in a case in Tennessee where Mr. Barnes represents the homeowner which was the subject of a recent post).Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
June 10, 2013A Crawfordville (Wakulla County) Florida Circuit Court Judge today denied a Motion for Summary Judgment filed by Deutsche Bank as trustee for a Morgan Stanley securitization.
Jeff Barnes, Esq. wrote the legal memorandum to oppose the Motion and personally argued the case in court this morning. The case involves a “blank endorsement” by the original lender which was had been out of business two years before the Complaint was filed, with no evidence as to when the endorsement was placed on the Note or with what authority. The Plaintiff’s Affidavit did not have the information required by recent Florida case law including the McLean v. JPMorgan Chase Bank line of cases as to the issues surrounding alleged blank endorsement which are undated.
The Plaintiff also failed to demonstrate that it has complied with the Court’s prior Order compelling the homeowner’s discovery and filing of a log as to any documents claimed by DB to be “privileged.”
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
June 7, 2013We have been advised that in an effort by the banks to dampen what is the incredible effect of the Niday decision (our article below) which places numerous burdens on foreclosing parties and MERS in non-judicial foreclosures, that a bank lobbyist has caused an article to be published in the Oregonian (newspaper) that the decision is one ultimately in favor of the banks. Anyone reading the actual court opinion will quickly realize that the claim in this article is patently incorrect.Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
June 7, 2013In a 23-page opinion issued yesterday, the Supreme Court of Oregon has affirmed the decision of the Oregon Court of Appeals in Niday v. GMAC, which held that MERS is not the “beneficiary” for purposes of the Oregon Trust Deed Act (OTDA, which governs non-judicial foreclosures), and that there are numerous genuine issues of material fact which are present when MERS purports to execute documents such as an appointment of a successor trustee in its alleged (but incorrect) capacity of claimed “beneficiary”.Jeff Barnes, Esq. argued the case before both the Court of Appeals and the Supreme Court and wrote all of the briefs for the homeowner, who prevailed at both the Court of Appeals levels and in the Supreme Court. MERS had appealed the COA decision.
The Supreme Court also decided four certified questions as to MERS in the case of Brandrup v. ReconTrust, which was argued the same day as the Niday case before the Supreme Court.Significantly, the Supreme Court rejected all of MERS’ arguments as to its alleged status as “beneficiary”, even through MERS so claimed in the Deed of Trust. The Supreme Court specifically held that the Oregon statute provides that the beneficiary is the person named or otherwise designated in the trust deed for whose benefit the trust deed is given, noting that MERS attempted to split the statutory language by focusing on the “named or otherwise designated” portion while ignoring the “for whose benefit the trust deed is given” portion. The Supreme Court specifically held that the “person for whose benefit the trust deed is given” is the Lender, not MERS, as that person is the person who is entitled to payment on the promissory note, which is not MERS.
The opinion states that “the fact that MERS was identified in the trust deed as the ‘beneficiary’ does not make it so” for purposes of the OTDA. We have been arguing this across the United States for years: that just because MERS says it is the beneficiary does not render that statement true. However, as our readers are aware, too many courts have blindly accepted that language without delving into the true meaning of “beneficiary”. The Supreme Court of Oregon has finally done what needed to be done.
As such, the Court called into question (and found issues of material fact) as to the initiation and furtherance of a foreclosure when it involves actions of MERS, and set forth specific evidentiary and authority requirements which must be satisfied proven in a foreclosure involving MERS’ actions.
The Supreme Courts of Washington and Oregon are now in accord, even through they have different foreclosure statutes, that MERS is not the beneficiary. The full opinion is available upon request by going to our “Contact Us” link.
Jeff Barnes, Esq., ForeclosureDefenseNationwide.com