HAWAI’I COURT ENTERS FINAL ORDER DENYING SUMMARY JUDGMENT IN CASE WHERE THERE IS A GENUINE ISSUE OF MATERIAL FACT SURROUNDING TRANSFER OF NOTE WHEN LENDER FILED FOR BANKRUPTCY

March 28, 2013

In an earlier post, we advised that a Honolulu, Hawai’i Circuit Court Judge had denied a Motion for Summary Judgment filed by U.S. Bank, N.A. as the claimed trustee of a GMAC securitization which was the foreclosing Plaintiff. The Court has now entered the final Order which states that the Court denied the Motion as “there are genuine issues of material fact (whether the transfer) of the note was proper when Homecomings Financial, LLC filed for bankruptcy.”

This decision is in line with prior decisions of both the State and Federal courts in Hawai’i which have questioned MERS assignments made by MERS “as nominee” of a bankrupt lender and in the absence of any proof that the transfer was authorized by the bankruptcy court having jurisdiction over the estate of the bankrupt lender. Hawai’i has been in the forefront of the decisions on this issue.

As previously mentioned, the homeowner is represented by Hawai’i counsel Damon Senaha, Esq. of Honolulu, and by Jeff Barnes, Esq. who wrote the legal memorandum opposing USB’s Motion for Summary Judgment. Mr. Barnes also represents another Hawai’i homeowner who successfully opposed a Motion for Summary Judgment filed by a securitization trustee which was Motion was denied on the same basis and facts by the same court as the recent decision the subject of this post: that is, the genuine issues of material fact surrounding the alleged assignment of the loan by MERS as nominee of a lender who had filed bankruptcy.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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