THE YEAR IN REVIEW AND UPCOMING ISSUES IN 2013

December 31, 2012

2012 saw the advancement of many homeowner-related issues in foreclosure defense litigation around the United States. FDN was at the forefront of many of these matters, which are pressing into 2013. Some of the highlights from 2012 include the following:

In Delaware, we forced the issue of securitization discovery and caused MERS to dismiss a case where it attempted to foreclose in its own name. The issues surrounding what MERS can and cannot do are still unresolved in Delaware, as are the issues related to securitization.

In Florida, we caused several cases to be dismissed and attorneys’ fees to be assessed against the foreclosing “banks”, which attorneys’ fee awards were paid. We are also advancing multiple appeals on the issue of the validity of alleged “blank endorsements” under the McLean line of cases.

In Tennessee, we forced the issue of securitization discovery and compelled that discovery to be provided with a Motion to Dismiss pending.

In Oregon, we prevailed in the Oregon Court of Appeals on the issue of wherther MERS is a “beneficiary” for purposes of the Oregon Trust Deed Act, with the COA holding that it is not. The issue is being argued in the Oregon Supreme Court on January 8, 2013 as MERS appealed the COA decision.

In Hawaii, we defeated summary judgment and caused a court ruling which has permitted an attack on a nonjudicial foreclosure which took place 3 years ago, in accordance with the homeowner’s claim that there was no strict compliance with HRS 667-5 (Hawaii’s nonjudicial foreclosure statute).

In New Jersey, we forced the issue of securitization discovery and caused the dismissal of additional cases due to the foreclosing “bank’s” noncompliance with Management Orders.

In Michigan, we are actively litigating the issue of the alleged preclusion of attacks on assignments under the Livonia Properties case, which actually does not prohibit such attacks. The “banks” continue to misrepresent the alleged limitations of the case, with the distinctions being clarified by later decisions of the same Court which rendered the Livonia Properties opinion.

We brought securitization issues into Indiana, where there is still no appellate case law relating to these issues.

In Colorado, we caused a foreclosure to be dismissed at the Rule 120 stage with a written opinion, which ruling is being used in other cases across the state.

In Montana, we are bringing the MERS issues to the Montana Supreme Court as there is no appellate law on MERS in Montana.

There are a multitude of issues being brought in pending foreclosure actions both in these states and others, as many states still, to this day, do not have any appellate-level case law on many of the issues surrounding foreclosures, including the validity of alleged “blank endorsements”; the validity of alleged “assignments” (including alleged “Allonges”); and all of the securitization issues related to credit default swaps, insurances, and third-party payments on loans, which issues have been vigorously fought by the “banks”. We anticipate that 2013 will see the further development and refinement of a multitude of legal issues which will be pressed by our national network of law Firms, which network began with Mr. Barnes and one Firm in Maryland in early 2008 and now has 41 member Firms with more Firms requesting to join the network in 2013.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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