May 15, 2013A Wilson County, Tennessee Circuit Judge has ordered that a threatened non-judicial Trustee’s Sale instituted by Bank of America is to be stopped. The homeowner is represented by Jeff Barnes, Esq. and local TN counsel John Higgins, Esq. Mr. Barnes prepared the Complaint, Affidavit, Motion, and proposed Findings of Fact and Conclusions of Law required by Tennessee law. Mr. Higgins argued the matter before the Court. Mr. Barnes will now seek admission to the case pro hac vice through Mr. Higgins.The Note and Deed of Trust was originated by a local Tennessee bank. The servicing (only) was later transferred to an “investor’s group” entity which demanded payments, which were made by the homeowner. Countrywide (CTW) thereafter sent a letter to the homeowner alleging that the loan itself was transferred from the “investor’s group” to CTW, although there was never any evidence that the loan itself had been transferred from the originating lender to the “investor’s group” to begin with.The homeowner was notified 3 years later that the owner of the loan was Fannie Mae, although no documents evidencing this purported transfer to Fannie were provided to the homeowner.
A few months later, BOA scheduled a Substitute Trustee’s Sale by notice in which it claimed that BOA was the “holder” of the Note, although BOA failed to provide any documentation to the homeowner evidencing a transfer from Fannie to BOA or evidence of authority from Fannie to BOA to do anything. This, of course, is on top of the lack of documentation showing that the loan was ever transferred to the “investor’s group” which then allegedly transferred it to CTW, and there is no evidence of any transfer of anything from CTW to anyone. To make matters more complicated, BOA claimed that the homeowner was in default in an amount which failed to account for the homeowner’s prior payments to the “investor’s group”, and BOA has failed to provide an accounting of such payments. Thus, the Complaint also makes a demand for this accounting.This case illustrates a general pattern we are seeing in current foreclosure cases: multiple alleged transfers of mortgage loans and/or servicing rights with no or conflicting information; allegations in documents which are unsupported; and attempts by downline purported successors to enforce Notes which they have not proven they have any rights to. Thankfully, more and more courts are starting to recognize this problem, and certain states have enacted procedural rules which require sworn affidavits from a foreclosing party as to proof of ownership or the right to enforce the Note before a foreclosure has been filed. We have been made aware that more such changes are coming in other states and courts as well.About time.Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com