December 2, 2016
A Santa Fe County, New Mexico Judge has ordered the deposition of the representative of Bank of New York who signed an alleged “conflict wavier” which was prepared after the homeowner filed a Motion to Disqualify Plaintiff’s counsel due to a conflict of interest. Jeff Barnes, Esq. represents the homeowner together with local NM counsel Guy Beckley, Esq.
Bank of NY as the alleged trustee of a Countrywide home equity (HEQ) securitization Trust sued the homeowner for foreclosure. Counsel for BNY prepared an assignment which purported to transfer the loan to BNY as the trustee of a different Countrywide securitization trust (an ALT). The law Firm then sued its own client (BNY as Trustee for the HEQ Trust) and sought a default against its own client, doing so without proof of service on its own client, without evidence of a waiver of conflict, and as part of its Motion for Default and Summary Judgment.
The homeowner filed a Motion to Disqualify the law Firm based on the conflict of interest in the Plaintiff’s law Firm suing its own client and seeking a default against its own client in connection with the alleged transfer of the loan from one securitization trust to another. The law Firm thereafter filed an alleged “conflict waiver” signed by a representative of BNY which was not in affidavit form or otherwise authenticated.
At the hearing yesterday, Mr. Barnes requested, at a minimum, that the deposition of the BNY employee who signed the alleged conflict waiver be taken. The Court agreed over the vociferous objection of the attorney from the Plaintiff’s law Firm, and also ordered that the deposition be filed after which time the Court will review the testimony and rule on the disqualification motion
Under New Mexico law, a motion for disqualification must be ruled upon before any other proceedings go forward. Thus, the Plaintiff’s MSJ will not be entertained until the disqualification motion has been decided.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com