MOTION TO DISMISS/SUMMARY JUDGMENT DENIED IN NEW JERSEY CASE WITH FIVE ASSIGNMENTS; RHODE ISLAND FEDERAL COURT PERMITS ATTACK ON SECURITIZATION ASSIGNMENT

November 22, 2013

A New Jersey Chancery Judge has just denied a Motion to Strike a homeowner’s Contesting Answer and Defenses and dismiss his Counterclaim in a New Jersey case involving five (5) claimed Assignments which involve MERS, EMC, and Wells Fargo. In what appears to be a unique case, Wells Fargo has requested, in its Complaint, that the Court declare that three of the Assignments are void and of no effect. Counsel for Wells Fargo attempted to argue the Motion as one for summary judgment although it was not styled as such. Motions for Summary Judgment are decided under a completely different set of rules and case law in New Jersey.

The Judge stated that he has never seen a chain of title to a mortgage loan which is so complex, thus giving rise to issues of material fact and warranting denial of the Motion to Strike and Dismiss.

Jeff Barnes, Esq. represents the homeowner together with local New Jersey counsel Michael Jacobson, Esq. Mr. Barnes is admitted pro hac vice in the case and argued the matter within the last hour.

Separately, the United States District Court for the District of Rhode Island issued an opinion on November 5, 2013 in the matter of Cosajay v. MERS, 2013 WL 5912569, which rejected the Magistrate’s Report and Recommendation which dismissed the homeowner’s lawsuit based on a lack of standing to challenge the assignments. The U.S. District Court held that the homeowner has standing to challenge the foreclosure attempt, which challenge is based upon the 2008 purported MERS assignment to a securitized mortgage loan trust which closed in 2007. The homeowner asserts that on these facts, there was thus nothing for MERS to assign in 2008.

The opinion is similar in its reasoning to the Glaski decision from California, although it does not rely on Glaski but on cases from Massachusetts and on Rhode Island non-judicial foreclosure statutes. The Court stated that its “decision finding standing is buttressed by Defendants’ extreme and incongruous argument that would allow Ms. Cosjay no relief because she is not a party to the assignment”, thus putting the kebash on decisions from other states which have taken this “extreme and incongruous” position.

This decision should be used in any case, as legally permitted, where the foreclosing “bank” or servicer claims that the homeowner cannot attack the assignment because they are not a party to it. The battle as to this significant issue thus continues, but the only cases which really explain the fallacy in the position that the homeowner cannot challenge the assignment because they are not a party to it are the decisions which explain why this position cannot legally stand. The decisions which take the “incongruous” position simply adopt it without much if any legal reasoning.

A copy of the decision, which has already been widely published on the internet, is also available upon e-mail request to us.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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