April 23, 2012
For a third time, an Iowa District Court has denied summary judgment to the “foreclosing Plaintiff”, which began with Wells Fargo back in 2005 but changed, in 2011, to US Bank as “trustee” of a securitized mortgage loan trust. For those who have followed this case, Wells Fargo’s second summary judgment request was denied on July 6, 2011. Jeff Barnes, Esq. and local Iowa counsel Christine Sand, Esq. represent the homeowner.
The Court’s five page Order sets forth that the Plaintiff (now US Bank as “trustee”) “fails here for two independant reasons”. First, the Plaintiff failed to show Wells Fargo’s entitlement to the instrument when the admitted loss of possession of the Note occurred, which conclusion was reached at the July 6, 2011 summary judgment hearing. The Court found that the Plaintiff simply asked the Court to reach a different conclusion now based on essentially identical facts which were presented at the prior summary judgment hearing.
Second, the Court found that the Plaintiff failed to show the nonexistence of a genuine issue of material fact as to what happened to the original Note. Plaintiff’s Affiant Erin Roesch only states that she “learned” of the loss without further explanation, with such “learning” being based on second-hand information. The Court found that the Affidavit failed to comply with Iowa Statute 554-3309 as the Affidavit was not based on peersonal knowledge and was otherwise deficient in several respects.
The matter will now proceed to trial.
Separately, the forclosure defense seminar last Friday, April 20 attracted participants from Florida, California, and Nevada, all of whom have sent extremely complimentary e-mails praising the event and stating that they acquired an enormous amount of knowledge. The next seminar is being planned to take place in south Florida in late June, with another seminar to be scheduled in California some time in July.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com