July 21, 2017
This afternoon, a Multnomah County (Portland) Oregon Judge denied a Motion to Dismiss the homeowners’ Counterclaim (to a judicial foreclosure action) for Declaratory Relief in connection with what the homeowners have claimed to be an illegal unilateral modification of a mortgage loan contract by the downline alleged “successor” to the Note and Deed of Trust. The homeowners are represented by Jeff Barnes, Esq. together with local Oregon counsel Elizabeth Lemoine, Esq. As those of you who historically follow this website may be aware, Mr. Barnes and Mrs. Lemoine were the attorneys who prevailed n the Niday v. GMAC case in both the Oregon Court of Appeals and the Supreme Court of Oregon, which decisions established that MERS is not the beneficiary of a Deed of Trust despite claiming to be so.
The foreclosing Plaintiff is an entity which styles itself Wilmington Savings Fund Society as the (alleged) “trustee” of a securitized mortgage loan trust. The case involves a defunct original lender and multiple “Allonges” which are undated and unauthenticated.
The homeowners have alleged that as a result of the loan being securitized that numerous rights were lost which was not disclosed to the homeowners notwithstanding the “your loan may be sold” language in the mortgage loan documents, which the homeowners have contended is an incomplete and misleading disclosure. The homeowners have also taken the position that Wilmington’s “sale” of the loan to an unregulated commercial investment entity with the concomitant loss of rights and protections afforded to residential mortgage loans issued by Federally-regulated mortgage lenders resulted in the unilateral modification of the mortgage loan contract . As in all states, unilateral modification of contracts, without consent and any required additional consideration for the modification, is illegal.
Mr. Barnes is advancing this claim in several states, including Oregon, Florida, New York, and Tennessee. There is currently no case law on the issues or as to this particular claim, so the issues are not precluded by any existing law and are ripe for advancement.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com