June 21, 2019
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A Federal Judge in Pennsylvania has issued a lengthy ruling which provides, in part, that a borrower has standing to challenge an assignment in a case where Jeff Barnes. Esq. of W. J. Barnes, P.A. represents the homeowners. The opinion cites the decisional law which was set forth in Mr. Barnes’ briefing to the Judge on the “bank’s” motion to dismiss. The “bank” has not appealed the ruling.
As those of you who have historically followed this website are aware, there is a divergence in the law across the country as to whether a borrower has standing to challenge an assignment of the loan. Several courts have taken the position that a borrower does not as the borrower is not a “party to the assignment”, which is ridiculous as it is the borrower’s loan which is being assigned. The Pennsylvania Federal Judge agreed that a borrower does have such standing.
Mr. Barnes has also successfully prevented a final judgment of foreclosure from being entered by filing a Federal rescission action. The homeowner, who Mr. Barnes represents in both the state court foreclosure litigation and the Federal litigation, filed the action prior to the foreclosure trial. The homeowner effected a rescission in 2009 well within the time period to do so, but never filed an action to enforce it. Mr. Barnes’ Firm was retained years later to defend the state-court foreclosure action. The state court Judge ruled that although the trial was to progress, no final judgment would be entered until the outcome of the Federal litigation, as if the homeowner prevails in the Federal action, the state court foreclosure claim is mooted.
Mr. Barnes is also involved in a significant appeal in the United States Court of Appeals for the 6th Circuit in a matter where the issue surrounds the application of the correct statute of limitations for purposes of filing an action to enforce a rescission as the TILA provisions on rescission do not contain a statute of limitations, and the decision of the United States Supreme Court in the Jesinoski v. Countrywide case did not address the issue of the time limitation to file an action to ENFORCE a rescission; the opinion only dealt with the proper period to effect a statutory rescission under 15 USC sec. 1635 and 1640.
Jeff Barnes, Esq. www.ForeclosureDefenseNationwide.com