MERS ISSUE HEADED FOR ORAL ARGUMENT IN OREGON SUPREME COURT; FIRST TEST CASE FOR DISMISSAL WITH PREJUDICE FOR REPEATED NONCOMPLIANCE WITH DISCOVERY ORDERS HEADED FOR ARGUMENT IN NEW JERSEY; APPEAL OF SUMMARY JUDGMENT WHERE THERE WAS NO EVIDENCE OF WHEN ENDORSEMENT WAS PLACE ON NOTE HEADED FOR FINAL BRIEFING IN FLORIDA; BATTLES FOR SECURITIZATION DISCOVERY CONTINUE ACROSS THE UNITED STATES

October 13, 2012

For what is now going into its fifth year, FDN, through its national network of attorneys which now numbers 44 law Firms, has consistently forced significant issues in foreclosure to be brought before trial and appellate courts around the country. Three of these are coming to a head at this time.

As those of you who follow this website are aware, on July 18, 2012, the Oregon Court of Appeals issued its decision in Niday v. GMAC and MERS which held, in a 27 page opinion, that MERS is not the “beneficiary” in a Deed of Trust notwithstanding language in the DOT to that effect. Jeff Barnes, Esq. and local Oregon counsel Elizabeth Lemoine, Esq. represent the Nidays, who prevailed in that decision. MERS has taken an appeal of that decision to the Oregon Supreme Court, which has granted review. The case will be orally argued before the Oregon Supreme Court in early January, 2013.

One month after the Niday decision was issued, on August 16, 2012, the Supreme Court of Washington issued its opinion in Bain v. Metropolitan Mortgage and MERS which not only came to the same result as the Oregon Court of Appeals did in Niday, but went even further to provide that MERS can be sued for misrepresenting its claimed status as a “beneficiary”.

In New Jersey, FDN attorneys Jeff Barnes, Esq. and local NJ counsel Daniel Schmutter, Esq. represent the homeowner in a case where there is a pending Motion to Dismiss a foreclosure with prejudice for US Bank’s refusal to produce discovery and witnesses with personal knowledge of numerous issues despite no less than five (5) court orders compelling this discovery, including one Order which was entered AFTER the case was dismissed without prejudice, as New Jersey permits a noncomplying party 60 days to remedy the discovery deficiency in connection with any request to reinstate the case. There is currently no New Jersey decisional (case) law which is “on point”, and thus if the case is dismissed with prejudice, it will be the first such case to be so dismissed on these facts in the history of the state of New Jersey. The Motion will be argued in the near future.

In Florida, Mr. Barnes represents the homeowners in an appeal of a summary judgment which was granted despite the trial court not being provided with any evidence as to when the alleged endorsement was placed on the Note. Recent Florida case law has repeatedly reversed summary judgments where there is no evidence that the endorsement was placed on the Note prior to the time that the Complaint was filed (Florida has a requirement that standing be demonstrated at the time the complaint is filed, which cannot be “cured” thereafter by a subsequent endorsement). The trial Judge actually asked the “bank’s” counsel, at the summary judgment hearing, when the endorsement was placed on the Note, which question was not answered. There are also issues with the validity of the “Affidavit” filed in support of the MSJ.

Discovery battles for securitization discovery continue in Hawaii, Tennessee, and New Mexico where Mr. Barnes represents the homeowner with local counsel in each of those states. These states should follow the example of New Jersey, where Mr. Barnes and his local in-state counsel have had no less than nine (9) cases dismissed as a result of the foreclosing party’s failure to produce discovery.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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