INCREDIBLE VICTORY IN IOWA: JUDGE VACATES 2005 SUMMARY JUDGMENT ENTERED AGAINST BORROWER AND REQUIRES PLAINTIFF TO PROVE ISSUES AS TO OWNERSHIP OF NOTE AT TRIAL

In a stunning decision, an Iowa District Court Judge has issued a 4 page written opinion vacating a 2005 summary judgment which had been entered against the borrower in favor of Wells Fargo. The decision also vacates a July 7, 2010 Order which reaffirmed the 2005 summary judgment.

The borrower retained Jeff Barnes, Esq. in 2009, who began questioning the decision in view of prior pro se filings of the borrower in which she stated that Wells Fargo had previously told her in 2004 that her loan was owned by Lehman Brothers. The 2005 summary judgment was entered on an Affidavit of a representative of Wells Fargo which stated that the affiant had read the foreclosure petition and motion for summary judgment and that the statements therein were true, one of the statements being that Wells Fargo was in possession of the note. 

Shortly after Mr. Barnes was retained, the case was set for trial. Mr. Barnes, together with local Iowa counsel Christine Sand, Esq., propounded discovery upon Wells Fargo, which was not complied with as of the time of the original trial. Wells Fargo’s counsel simply dumped a pile of unsegregated documents on counsel table on the day of trial without even a formal response to the discovery request. To date, the subject discovery (which seeks, in part, the evidence as to ownership of and chain of title to the note and mortgage) has not been fully complied with. The trial was reset to late September, 2010.

On July 21, 2010, Wells Fargo filed a Motion to Substitute Plaintiff in which it stated that “it has been determined upon information and belief that pursuant to a Servicing Agreement between Wells Fargo and Lehman Brothers Bank FSB, an assignment is required and will be executed and recorded. The holder of the note and mortgage is Lehman Brothers Bank FSB.” As those of you who read foreclosure defense websites know, Lehman previously filed for Bankruptcy.

Note that Wells Fargo states that the assignment “will be recorded”. The borrower first challenged Wells Fargo’s ownership of the note in 2004, and now, some time in the future, Wells Fargo is “going to do” an assignment?! Further, it now comes out, in 2010, that what the borrower said in her 2004 pro se filings was 100% correct.

The matter becomes even more complicated and uncertain. The Court’s opinion notes that on August 19, 2010, an affidavit was filed by a representative of Wells Fargo stating that “the original copy of the note has been lost”. In the opinion, the Court states that it premised its [prior] summary judgment ruling on Plaintiff’s possessing the note. The Court then went on to state “The validity of that premise having become increasingly doubtful, and the Plaintiff having chosen to offer nothing as to when Lehman Brothers Bank FSB became the “holder” of the note, when the note was lost, the circumstances surrounding Lehman Brothers Bank FSB becoming the “holder” of the note, or the circumstances surrounding the loss of the note, the orders granting partial summary judgment and reaffirming that judgment should be vacated and the plaintiff should be required to prove its case at trial”.

We characterize this decision as a justice delayed (through no fault of the Court or the borrower) but not denied. We hope that more members of the judiciary scrutinize foreclosures this carefully, and laud this Jurist for his diligence.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

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