July 21, 2015
Yesterday, a Dandridge (Jefferson County), Tennessee Circuit Court Judge declined, for the second time in 30 months, to dissolve a restraining Order precluding any nonjudicial sale and also declined to require the homeowners to post a bond as a condition of precluding any sale in a Bank of NY securitization case involving America’s Wholesale Lender (AWL) as the alleged original lender. The Judge’s ruling reiterates the Court’s previous denial of the same request made by BNY back in 2012.
Jeff Barnes, Esq. represents the homeowners together with local TN counsel Andrew Farmer, Esq. Mr. Barnes wrote the responsive brief and argued the matter yesterday in the Jefferson County courthouse in Dandridge, TN.
The homeowners originally filed suit in 2010 challenging BNY’s alleged right to seek a non-judicial foreclosure. The Circuit Court Judge entered a restraining order on Motion of the homeowners prepared and filed by Mr. Barnes. No bond was required as Rule 65.05(1) of the Tennessee Rules of Civil Procedure provides that a bond is for the payment of costs and damages which the party being enjoined may be shown to have suffered while being enjoined. The intent of the Rule is that there has to be evidence of such damages, which go in part into the future. BNY presented no such evidence, and the homeowners are challenging BNY’s standing to seek any relief at all.
BNY had also previously filed a Motion to Dismiss the homeowners’ Complaint, which Motion was denied. BNY had also moved to stay discovery, which was also denied.
In the 30 months since the entry of the original restraining Order, BNY did nothing to appeal or otherwise challenge the Order, and presented no evidence of any alleged damages being suffered while being enjoined from selling the property during the pendency of the litigation. The Judge stated “the Defendant [BNY] is no worse off than it was back in 2012”.
The homeowners are not only challenging BNY’s lack of standing to seek any relief due to no evidence of a lawful transfer to the securitization trust, but also that the loan may have been paid down or paid off from insurances, credit default swaps, and the like. They are also challenging any alleged right to enforce the loan in view of the Nash decision from Florida which found that AWL never existed and the loan was thus void resulting in no valid obligation to enforce. The Judge stated that “these are legitimate questions”.
In the end, the Judge stated that he had not been presented with any evidence by which he could calculate a bond, especially as the question of who owns the loan remains unanswered, and thus continued the imposition of the restraining Order without the requirement of a bond.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com