HOMEOWNER AWARDED ATTORNEYS’ FEES ON APPEAL WHERE DEUTSCHE BANK CONCEDED ERROR OF TRIAL COURT IN ENTERING FINAL JUDGMENT OF FORECLOSURE

December 21, 2015

The Florida Second District Court of Appeal has entered an Order granting the homeowner’s motion for appellate attorneys’ fees in a case where Deutsche Bank National Trust Company as the claimed trustee of a securitized mortgage loan trust conceded error on the part of the trial court in entering a Final Judgment of Foreclosure on the issue of lack of evidence of standing. The homeowner is represented by Jeff Barnes, Esq., who tried the case and filed the appeal including the homeowner’s Initial Brief.

Deutsche Bank requested several extensions of time to file its Answer Brief and also, during this time, repeatedly requested the homeowner to enter into a loan modification. Deutsche Bank never filed an Answer Brief, and instead ultimately filed a Confession of Error, admitting that the trial court erred in entering Final Judgment for Deutsche Bank.

The Final Judgment was thus vacated, and the appeals court has ruled that the homeowner is entitled to her appellate attorneys’ fees (as the homeowner was the “prevailing party” in the appeal.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FORECLOSURE SALE THROWN OUT IN FLORIDA

December 18, 2015

A Pinellas County (Clearwater) Florida Circuit Judge today vacated a foreclosure sale on Motion on the borrower and her newly retained counsel Jeff Barnes, Esq., who is assisted by paralegal John Krondes of Connecticut. The borrower filed an objection to the sale prior to retaining Mr. Barnes and Mr. Krondes. The matter was set for hearing today.Mr. Barnes filed a Motion for Evidentiary Hearing as the law in Florida is that an objection to sale must be the subject of an evidentiary hearing, and may not be decided solely on affidavits or argument of counsel.

The Florida 4th District Court of appeal earlier this year reversed a Circuit Judge’s approval of a sale in another case where the borrower filed an Objection to the sale and where the Judge in that case permitted the sale to proceed without an evidentiary hearing on the borrower’s objection to the sale.

The borrower has retained two (2) expert witnesses and will be filing a Motion to Vacate the Final Judgment being prepared by Mr. Barnes and Mr. Krondes based on recent Florida case law.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

MERS “NOT THE BENEFICIARY” OF THE DOT IS NOW THE LAW IN TENNESSEE; FLORIDA JUDGE REFUSES TO STRIKE AFFIRMATIVE DEFENSES IN JPM/FDIC CASE; DISCOVERY CONTINUES IN SOUTH CAROLINA CASE WHERE LOAN HAS BEEN SOLD SEVEN TIMES

December 14, 2015

Last week was busy. On Friday, December 11, 2015, the Supreme Court of Tennessee issued its decision in MERS v. Ditto, where in a 33-page opinion the Court held that MERS is not the beneficiary under a Deed of Trust; that MERS acquires no property interest by virtue of any claim in the DOT; and that MERS has no constitutionally protected property interest. The opinion cited to many cases, including the Pilgeram decision from the Supreme Court of Montana where Jeff Barnes, Esq. had prevailed on the MERS issues including that MERS is not the beneficiary under a DOT under Montana law.

Also on December 11, a Hillsborough County, Florida Judge denied a Motion to Strike Affirmative Defenses filed by a 4th-downline alleged “Assignee” in a case originally filed by JPMorgan Chase arising out of a WaMu-originated loan which JPM had claimed was inherited by it as a result of the Purchase & Assumption Agreement with the FDIC after WaMu failed. The homeowner, who is represented by Jeff Barnes, Esq., raised 16 affirmative defenses including the lack of any evidence of transfer or sale of the loan from the FDIC to JPM pursuant to the sworn deposition testimony of former WaMu and JPM mortgage management employee Lawrence Nardi and JPM’s filing in a Federal action where it admitted to the court that it was “not the successor in interest” to WaMu.

The loan in the Florida case was subsequently sold 3 times in less than 2 years to various “LLC” entities. The homeowner was permitted to amend his Answer and affirmative defenses with each new sale. The Court struck only 2 of the 16 defenses based on the fact that those 2 defenses incorporated the prior 14 defenses, which the Court let stand.

In South Carolina, a Dorchester County Judge has also permitted further amendment of a homeowner’s counterclaim and cross-claim in a case where the loan has been sold seven (7) times. The Judge also ordered discovery to be produced by the Plaintiff (U.S. Bank as trustee of a securitization trust, which is also a defendant in the homeowner’s counterclaim for declaratory relief seeking an adjudication that the Plaintiff has no enforceable interest). The homeowner is represented by Jeff Barnes, Esq. together with local South Carolina counsel Bill Sloan, Esq.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

COLORADO EVICTION TRIAL STOPPED IN ITS TRACKS: CASE OF FIRST IMPRESSION ON RESCISSION AND “PETE” DEFENSES TO PROCEED TO OTHER COURTS

December 5, 2015

In what we consider to be a major victory in a case of first impression in Colorado, an Archuleta County Judge stopped an eviction trial from proceeding after motions, briefing, and lengthy argument yesterday. Jeff Barnes, Esq. represents the homeowners, who are battling both US Bank and Citimortgage in connection with the threatened eviction.

Colorado law permits the assertion of defenses in an eviction action, but the case law does not limit or specify what defenses can be raised. The homeowners raised defenses related to a post-sale change of ownership in the loan (and thus a “person entitled to enforce” [PETE] issue), and other defenses including a defense based on a TILA rescission effected pursuant to 15 USC sec. 1635 and 1640. Neither the “lender” nor the servicer undertook any action within the 20 day period permitted by the Federal statute to challenge the homeowners’ exercise of their right to rescind, electing instead to wait until yesterday’s hearing to attempt to argue a “defense” to the rescission.

The Court ultimately ruled that it is without jurisdiction to entertain the defenses raised, and issued an abatement order staying the eviction case until the District Court decides the issues related to the defenses. This means that no eviction trial can be scheduled until the District Court litigation on the defenses (which is an entirely new action to be filed) has run its course, which would include any appeals.

Further, if the homeowners prevail on their rescission claim, the entire eviction action could conceivably disappear forever. The law on rescission, after the issuance of the Supreme Court’s Jesinoski decision in January of this year, is far from settled, and more issues have opened up in view of this decision which clarified, among other things, that a rescission is effective upon the mailing of the notice of rescission. The principles of the Jesinoski decision were recently affirmed in the Pataalo decision out of Oregon (which was brought to our attention by several of our dedicated followers), much to the chagrin and frustration of JPMorgan Chase (the foreclosing party in that case).

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com