July 10, 2015
Yesterday, an Oregon Circuit Court Judge issued a detailed, multi-page ruling denying BONY’s Motion for Summary Judgment in a case involving a purported transfer of a loan (allegedly) originated by America’s Wholesale Lender to a securitization trust. The ruling is of statewide significance for several reasons, including the fact that there is presently no Oregon appellate law on the issues.
Jeff Barnes, Esq. represents the homeowners together with local Oregon counsel Philip Anderson, Esq. The Motion was argued in open court by Mr. Barnes, who drafted the responsive papers, on June 25, with the ruling being issued late yesterday afternoon.
Oregon has four issues in a judicial foreclosure, the first being whether the foreclosing party is the “PETE” (person entitled to enforce). The Court denied BONY’s MSJ on this threshold requirement, and based on the arguments made by Mr. Barnes and the filing of an ORCP 47E Affidavit as to an expert witness, permitted the homeowners to present expert testimony as to the authenticity and legal relationships involved in the transaction, citing a recent (2015) Oregon appellate decision on the issue of the scope and requirements of Rule 47E Affidavits.
BONY had argued that no expert testimony was needed in what it called “a simple foreclosure case” The 2015 case sets forth that such Affidavits need only to contain certain language and are evaluated in view of the theory of the case. This case involves numerous complex issues including but not limited to the America’s Wholesale Lender issues (previously discussed on this website) and the securitization issues, including the legitimacy of any alleged transfer under the factual circumstances of the case.
The second and perhaps most important ruling was that the Court, in denying summary judgment on BONY’s claim that the homeowners did not have standing to challenge the sale, transfer, and assignment of the Note and DOT, held that the homeowners do have such standing “to challenge the legitimacy of Plaintiff’s claim that they, as the alleged assignee, possessor, and holder of the Note and Deed of Trust, are the proper party to enforce them.”
This ruling is in accord with the U.S. Court of Appeals for the 6th Circuit’s October, 2014 opinion in the Slorp v. Lerner decision (previously discussed on this website) which clarified the flawed and improperly narrow interpretation of the 6th Circuit’s prior opinion in the 2010 Livonia Properties case, which bank and servicer attorneys (erroneously) argued precluded homeowner challenges to assignments and transfers of mortgage loans. The 1st Circuit Court of Appeals is also in accord pursuant to its holding in the Cosajay decision, which held that its “decision finding standing is buttressed by Defendants’ extreme and incongruous argument that would allow Ms. Cosajay no relief because she is not a party to the assignment.”
The case now progresses to full trial on the merits, including the issues involving the alleged “loan” by America’s Wholesale Lender; whether there was any interest to transfer, etc.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com