EVICTION STOPPED AT LAST MINUTE IN TENNESSEE; NEW MEXICO SUPREME COURT VACATES FORECLOSURE, ESTABLISHING STATE LAW ON RESTRICTIONS ON MERS AND ALLEGED TRANSFERS OF LOANS TO SECURITIZED TRUSTS

February 14, 2014

FDN attorneys stopped an eviction in Tennessee literally the day before it was to take place. The homeowner had been challenging the foreclosure pro se. A court order had scheduled an eviction to take place on Wednesday, February 12, 2014.

FDN Tennessee counsel John Higgins, Esq. and Jeff Barnes, Esq. were retained late in the afternoon on Friday, February 7, 2014. Mr. Barnes prepared the Complaint to challenge the underlying foreclosure, Emergency Motion for TRO and Preliminary Injunction with memorandum of law, and client affidavit, while Mr. Higgins prepared the Petition for Writ of Certiorari and Chancery Court filings. Mr. Higgins filed all papers on Tuesday, February 11. The TRO was granted and the eviction stopped literally hours before it was to take place the next day.

In New Mexico, the Supreme Court yesterday issued its 18-page opinion in the matter of Bank of New York v. Romero, which reversed the foreclosure judgment of the District Court and also reversed the Court of Appeals’ decision which had affirmed the District Court’s judgment. The case involved an alleged transfer of the homeowner’s loan to a securitization through an after-the-fact MERS assignment and a claim that the “endorsements”, which appeared on the second version of the Note (presented at trial) somehow gave BONY the right to enforce. None of the endorsements were to BONY.

The Supreme Court found the MERS assignment had no validity and transferred nothing for several reasons, and also held that the testimony of the bank’s witness, who simply reviewed records, did not provide any evidence that a transfer had in fact occurred. The opinion further discusses the predatory aspect of the loan and how it violated New Mexico’s “anti-flipping” statute, which also precludes giving someone a loan without the lender investigating facts which should have been readily available as to the homeowner’s ability to repay the loan notwithstanding any provisions in the loan documents.

The full opinion is available online, or by e-mailing us a request for an electronic copy. We thank several of our followers for sending us this opinion.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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