SECOND TENNESSEE JUDGE IN ONE WEEK RULES AGAINST BANK OF NEW YORK IN SECURITIZATION CASE

July 27, 2015

Last Friday, July 24, a Franklin (Williamson County), Tennessee Circuit Judge ruled against BNY, denying its Motion to Dismiss and staying a foreclosure. Per our prior post, last Monday, July 20, a Circuit Judge in Dandridge (Jefferson County), Tennessee also ruled against BNY denying its motion to dissolve a restraining order precluding any sale of the property during the course of the homeowners’ challenge to the foreclosure. The homeowners in that case are represented by Jeff Barnes, Esq. and local TN counsel Andrew Farmer, Esq.

The Franklin case involves MERS and BNY as the alleged trustee of a Countrywide securitization where two separate trusts are claiming ownership of the loan (a CWMBS and a CWALT). Jeff Barnes, Esq. represents the homeowners together with local TN counsel John Higgins, Esq. Mr. Barnes and drafted the opposition to BNY’s Motion to Dismiss, and the Judge issued his ruling in open court without any oral argument, although counsel for BNY repeatedly challenged the Judge’s oral pronouncement that he was denying BNY’s motion.

The MERS issues are currently on appeal in Tennessee following the Ditto decision which, like many other appellate courts throughout the US, held that MERS has no independent interest in real property and no protected interest in real property by being named beneficiary or nominee, and cited case law that MERS is contractually prohibited  from exercising any rights with respect to mortgages including foreclosure.

The rulings on Monday and Friday of last week, in both eastern and middle Tennessee, demonstrate that Tennessee courts are no longer blindly accepting the “we have the Note, therefore we win” position consistently taken by the “banks” and servicers.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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