MOTION TO DISMISS NASH-BASED COMPLAINT DENIED IN FT. MYERS, FLORIDA; INCREDIBLE DECISION FROM MIAMI, FLORIDA HOLDING THAT FAILURE TO DEMONSTRATE ALL INTERIM TRANSFERS IN A SECURITIZATION WAS FATAL AND THAT THE NOTE IS NOT A NEGOTIABLE INSTRUMENT

May 4, 2016

On Monday, May 2, 2016, a Lee County (Ft. Myers) Florida Circuit Judge denied a Motion to Dismiss filed by Bank of America and MERS which sought to dismiss a homeowner’s pre-emptive action for Declaratory Relief, Equitable Estoppel, Unjust Enrichment, Violations of Florida lending statutes, and violations of the Florida Unfair and Deceptive Trade Practices Act. Jeff Barnes, Esq. represents the homeowner and argued the matter in court on Monday.

The Complaint seeks relief based on the findings in the Nash and Dimant decisions which voided mortgage loans involving the non-existent America’s Wholesale Lender. Both cases found that AWL was never incorporated as represented in the loan documents and thus the loans were unenforceable. The Nash Court ordered the return of all monies paid by the homeowners on the alleged loan. Both Courts held that the homeowners were the prevailing parties for purposes of seeking their attorneys’ fees against the foreclosing parties.

Separately, a Miami-Dade County, Florida Circuit Judge has issued an incredible, 17-page decision in the matter of HSBC Bank, N.A. as Trustee etc. v. Buset, Miami-Dade County, Florida Case No. 12-38811-CA-01. The Court’s Order, which granted the homeowners’ motion for involuntary dismissal and ordered HSBC to show cause why it should not be sanctioned, was issued last week (on April 26, 2016), and finally debunks several myths and misconceptions which have been perpetrated upon the courts by “bank” and servicer attorneys for years.

We thank several of our dedicated followers for sending this decision to us. The Court’s findings are meticulous and hold, among other things, that:

(a)  prior servicer records were not admissible;

(b)  the undated endorsement failed to comply with the PSA;

(c)  the chain of interim endorsements required by the PSA were missing and thus any alleged transfer of the loan was defective;

(d)  the MERS assignment was void as it was executed years after the original lender (Fremont) filed for bankruptcy; and, perhaps most importantly,

(e)  the Note is not a negotiable instrument (citing numerous facts within the mortgage to demonstrate this, in addition to missing facts in the Note).

This decision is groundbreaking, and along with the Nash and Dimant decisions, show that Florida is the national leader in not only analyzing the real issues in foreclosure cases, but also exposing many of the myths which have been perpetrated upon the courts by the “banks” and “servicers” for years.

Bravo to Miami-Dade Circuit Judge Beatrice Butchko for taking the time and effort to issue this decision on issues which we have been arguing for years, but which Judge Butchko finally found to be true. A copy of the decision is available by e-mail request to us.

Jeff Barnes, Esq., www.ForeclosureDefensenationWide.com

 

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