January 21, 2010

In what has been hailed an enormously significant victory for Idaho borrowers, the Kootenai County District Court in Coeur D’Alene, Idaho converted a temporary restraining order obtained by FDN attorneys Jeff Barnes, Esq. and local Idaho counsel Monica Flood Brennan, Esq. into a temporary injunction late yesterday afternoon in a case where the borrower sued Bank of New York as the Trustee for a securitized mortgage loan trust which had attempted to sell the borrower’s home at a Trustee’s Sale. This is the first known state court decision on the issues which involved securitization and a MERS assignment. The decision was based on the pleadings and Affidavit of the borrower and was grounded on the Idaho and Nevada Bankruptcy Court decisions which were recently discussed on our website.

The Trustee had requested that the bond be increased from $1,000.00 to the amount of the claimed arrearage, which request was summarily denied by the Court as the Trustee failed to present any evidence of any alleged damages to be suffered from being wrongfully enjoined. Idaho, like most states, requires some form of security to be posted as a condition of the granting of an injunction.

As this is the first known state court level decision on the issues involving a securitized mortgage loan trustee attempting to foreclose based on a MERS assignment, the decision could potentially become the law on these issues for the State of Idaho, as FDN’s recent victory in New Jersey on the questionable nature of MERS assignments could become the law of the state of New Jersey, as no New Jersey appeallate court has yet spoken on the issue. FDN attorney Jeff Barnes, Esq. prepared the court filings and argued for the borrower at yesterday’s hearing.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com