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