NEW MEXICO COURT GRANTS HOMEOWNER’S MOTION FOR JUDGMENT ON THE PLEADINGS IN FORECLOSURE FILED BY BAC HOME LOANS SERVICING; COURT INVITES MOTION FOR SUMMARY JUDGMENT ON MERS ISSUE

October 12, 2011

Today, a New Mexico court granted a homeowner’s Motion for Judgment on the Pleadings in a foreclosure case filed by BAC Home Loans Servicing LP fka Countrywide Home Loans Servicing LP, neither of which was the original lender. The ruling was as to the record version of the Complaint. The Court did grant BAC 30 days to file an Amended Complaint, but was convinced that BAC did not have a proper chain of title to either the Note or the Mortgage, and invited a summary judgment motion on the MERS issue.

BAC filed the case with one Assignment which was from the original lender to MERS. A second Assignment unnotarized Assignment, which failed to identify who the “lender” was, purported to assign the Note and Mortgage from MERS to BAC. The homeowner claimed entitlement to judgment on the pleadings pursuant to New Mexico rules of civil procedure and New Mexico case law which provides that such a remedy is available where there is a “fatal variance” between what a foreclosing party pleads in its complaint and what it has to prove to be entitled to foreclose. The homeowner also attacked the ability of MERS to do anything based on the restrictions which MERS has placed upon itself and case law restricting what MERS is and can do.

The ruling is believed to be the first of its kind in the State of New Mexico. The homeowner is represented by Jeff Barnes, Esq. and local New Mexico counsel John R. Fox, Esq. of Santa Fe. Mr. Barnes prepared the Motion and legal memoranda, with Mr. Fox arguing the Motion in court today.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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