MERS “NOT THE BENEFICIARY” OF THE DOT IS NOW THE LAW IN TENNESSEE; FLORIDA JUDGE REFUSES TO STRIKE AFFIRMATIVE DEFENSES IN JPM/FDIC CASE; DISCOVERY CONTINUES IN SOUTH CAROLINA CASE WHERE LOAN HAS BEEN SOLD SEVEN TIMES

December 14, 2015

Last week was busy. On Friday, December 11, 2015, the Supreme Court of Tennessee issued its decision in MERS v. Ditto, where in a 33-page opinion the Court held that MERS is not the beneficiary under a Deed of Trust; that MERS acquires no property interest by virtue of any claim in the DOT; and that MERS has no constitutionally protected property interest. The opinion cited to many cases, including the Pilgeram decision from the Supreme Court of Montana where Jeff Barnes, Esq. had prevailed on the MERS issues including that MERS is not the beneficiary under a DOT under Montana law.

Also on December 11, a Hillsborough County, Florida Judge denied a Motion to Strike Affirmative Defenses filed by a 4th-downline alleged “Assignee” in a case originally filed by JPMorgan Chase arising out of a WaMu-originated loan which JPM had claimed was inherited by it as a result of the Purchase & Assumption Agreement with the FDIC after WaMu failed. The homeowner, who is represented by Jeff Barnes, Esq., raised 16 affirmative defenses including the lack of any evidence of transfer or sale of the loan from the FDIC to JPM pursuant to the sworn deposition testimony of former WaMu and JPM mortgage management employee Lawrence Nardi and JPM’s filing in a Federal action where it admitted to the court that it was “not the successor in interest” to WaMu.

The loan in the Florida case was subsequently sold 3 times in less than 2 years to various “LLC” entities. The homeowner was permitted to amend his Answer and affirmative defenses with each new sale. The Court struck only 2 of the 16 defenses based on the fact that those 2 defenses incorporated the prior 14 defenses, which the Court let stand.

In South Carolina, a Dorchester County Judge has also permitted further amendment of a homeowner’s counterclaim and cross-claim in a case where the loan has been sold seven (7) times. The Judge also ordered discovery to be produced by the Plaintiff (U.S. Bank as trustee of a securitization trust, which is also a defendant in the homeowner’s counterclaim for declaratory relief seeking an adjudication that the Plaintiff has no enforceable interest). The homeowner is represented by Jeff Barnes, Esq. together with local South Carolina counsel Bill Sloan, Esq.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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