April 30, 2013
A Sevier County, Tennnessee Special Master has today overruled a Motion to Dismiss a homeowner’s Complaint for Decalratory Relief. The Motion was filed by the Bank of New York Mellon as the claimed trustee of a 2005 securitization trust, which had originally moved to stay discovery and to dismiss and later filed a Motion for Protective Order claiming that no further discovery should be had until the Motion to Dismiss was decided. The matter was argued in two special court sessions lasting several hours over the course of several months, with the final session being argued and the ruling being issued today. The ruling will proceed to the presiding Judge.
Jeff Barnes, Esq. represents the homeowner together with local TN counsel Andrew Farmer, Esq. Mr. Barnes, who has been admitted pro hac vice in the case, prepared the briefs and argued both motions.
The case involves two conflicting assignments: one mentioned in an undated Notice of Substitute Trustee’s sale which claims that the loan was assigned to BNYM at some unidentified time by BAC GP LLC as attorney in fact for BAC Home Loans Servicing f/k/a Countrywide Home Loans Servicing (with no power of attorney attached), and a May 7, 2010 MERS assignment which attempts to assign the loan to a trust which closed in 2005. The Amended Complaint also requests a judicial declaration as to any paydowns or payoffs of the loan through securitization-related payments, including credit default swaps, insurances, and reverse pools. With the Motion to Dismiss being denied, the Motion for Protective Order was denied in part and withdrawn as to the balance.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com