SHOWDOWN IN NEBRASKA: MERS AND ISSUES AS TO UCC 3-308 SIGNATURE CHALLENGES AND WHETHER BOA HAS STANDING TO FORECLOSE

March 3, 2016

Jeff Barnes, Esq. of W.J. Barnes, P.A. was previously retained to defend a foreclosure instituted by Bank of America against a homeowner in a Nebraska foreclosure case. BOA filed a Motion for Summary Judgment (MSJ) which is being argued later this month by Mr. Barnes, who has been admitted pro hac vice to the Lancaster County, Nebraska District Court.

There are several critical issues in the case, including whether MERS had any authority to act at all and especially in light of the Supreme Court of Nebraska’s prior decision inĀ MERS v. Nebraska Department of Banking and Finance, where MERS’ counsel made numerous admissions including that MERS has no interest in promissory notes and disclaimed the authority of MERS to act in certain situations. BOA has attempted to distinguish this case on the basis of a recent decision from the Supreme Court of Nebraska. However, that decision did not involve or raise a specific challenge to MERS’ alleged authority, which was made in the case which Mr. Barnes will be arguing as part of the issues raised by Mr. Barnes in the pleadings and as part of the homeowner’s opposition to BOA’s MSJ.

One of the other central issues involves a “UCC 3-308 challenge”, which is a challenge to the alleged signature of the person whose name appears on the alleged “endorsement” on the Note. Nebraska’s UCC and case law which discuss issues of negotiation raise issues as to whether the party seeking to enforce the Note is a “holder in due course”, and section 3-308 of the UCC applies to “each” signature on a Note without exception in the statute. The homeowner has raised these issues as well through Mr. Barnes.

The ultimate decision on the MSJ at either the trial or appellate level has significant implications for homeowners in Nebraska and other states as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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