FORECLOSURE SALE STOPPED AT LITERALLY THE 11TH HOUR IN COLORADO

July 17, 2018

Moments ago, a Colorado District Court Judge entered an Order cancelling a Trustee’s (foreclosure) sale which was scheduled for tomorrow morning (July 18) in Douglas County, Colorado. The foreclosing party is Deutsche Bank as claimed Trustee of an American Home Mortgage securitization trust which closed in 2006. It is public knowledge that AHM filed for Bankruptcy in the United States Bankruptcy Court for the District of Delaware in 2007 which proceeding remains active to this day.

The case involves issues as to a MERS Assignment of the Deed of Trust and Deutsche Bank’s alleged legal ability to seek enforcement of the Note (issued in favor of the bankrupt American Brokers Conduit, which was a subsidiary of the bankrupt AHM).

The homeowners, who have lived in their home for over 18 years, are represented by Jeff Barnes, Esq. of W.J. Barnes, P.A. The homeowners were given less than 7 days’ notice of the sale of their home. Mr. Barnes filed a new action with supporting papers including an Emergency Motion for a TRO last Friday. The matter was assigned to the Judge yesterday, who just entered the TRO minutes before this post with a detailed ruling citing case law and factually that the homeowners had satisfied all of the necessary elements, both procedural and substantive, to be entitled to a TRO.

The matter now proceeds into discovery and the conversion of the TRO into a preliminary injunction so that no sale can occur while the matter is being litigated.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FLORIDA JUDGE DENIES MOTIONS FOR SUMMARY JUDGMENT FILED BY US BANK AS TRUSTEE, BANK OF AMERICA, MERS, AND NATIONSTAR IN AWL CASE

June 26, 2018

A Lee County (Ft. Myers) Florida Circuit Judge this afternoon denied Motions for Summary Judgment filed by US Bank as Trustee of a securitized mortgage loan trust, Bank of America, MERS, and Nationstar in a pre-emptive action filed by the homeowner which seeks Declaratory Relief and damages due to fraud and the Florida Unfair and Deceptive Trade Practices Act, and also seeks to quiet title to the homeowner’s property. The homeowner is represented by Jeff Barnes, Esq. of W.J. Barnes, P.A.

The Note and Mortgage are in the name of America’s Wholesale Lender, a purported “New York corporation” (which it never was), and the claimed “endorsement” on one version of the Note is not by AWL but by Countrywide Home Loans, Inc. d/b/a AWL. The homeowner was later directed to send payments to Bank of America (which he did) but after investigation, suspected that BOA had never legally succeeded to the interest of what he learned to be the non-existent AWL “a New York corporation”.

He initiated an action seeking the truth as to who his lender actually is, and for damages resulting from payments made to a non-holder and what he claims is a fraudulent lien on his property. The homeowners’ expert conducted significant research into the loan and determined that AWL was not the actual lender, and that the true lender was a third party located in Virginia.

The Defendants filed extensive Motions for Summary Judgment seeking to have all claims dismissed. Mr. Barnes file opposition papers totaling 57 pages of issues, documents, and case law.

After a 2.5 hour court hearing this afternoon, the Judge denied all of the Defendants’ Motions, holding up a pad which he showed to counsel where he had, during the course of the hearing, made a list of genuine issues of material fact. The matter will not proceed to trial. The homeowner has requested a jury trial, which the Defendants are opposing. A hearing on the matter is being scheduled.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

JEFF BARNES, ESQ. BEING REQUESTED AS A MEDIATOR IN FORECLOSURE CASES ACROSS THE UNITED STATES

This year, Mr. Barnes’ Firm and the FDN network celebrate their tenth consecutive year representing homeowners defending foreclosures throughout the United States in both state and Federal courts and at the trial and appellate levels. Mr. Barnes has been told by numerous attorneys representing banks and servicers, including attorneys working for large national foreclosure Firms, that he (Mr. Barnes) is the only attorney in the entire United States that they know of who represents homeowners in as many states as he does in all courts for as long as he has been doing so, and has more knowledge of the issues than any other attorney defending foreclosures.This has recently lead to numerous settlements of foreclosure cases.

As an apparently response to and respect for Mr. Barnes’ decade-long legal work including the establishment of the law as to MERS through victories in the Supreme Courts of Oregon and Montana and his tireless efforts to protect homeowners, Mr. Barnes has been recently requested to act as a mediator in foreclosure cases, and thus announces that mediation is now an additional service that his Firm offers.

Mr. Barnes was previously certified as a Mediator by the Supreme Court of Florida, and was also certified as a Qualified Neutral by the State of Minnesota.He has also attended countless mediations in foreclosure cases in numerous states over the past 10 years.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

W.J. BARNES, P.A. RETAINED FOR APPEALS IN STATE AND FEDERAL COURTS IN TENNESSEE, COLORADO, NEW JERSEY, PENNSYLVANIA, AND FLORIDA

May 18, 2018

W.J. Barnes, P.A. has recently been retained to handle appeals in state and Federal courts in several states, including Tennessee (state and Federal), Colorado (Federal), New Jersey (state), Pennsylvania (state), and Florida (state). Mr. Barnes has been lead appellate counsel in numerous appeals throughout the United States on a regular basis throughout his 30-year career as a litigator, and he is a member of the United States Courts of Appeal for the Third, Sixth, Tenth, and Eleventh Circuits.

There are still many states which do not have appellate decisions on several significant issues in foreclosure law, and there are new theories of defense being developed as well. As there is no appellate law on these new theories, appeals will continued to be filed on these issues.

Off topic, we wish everyone a happy and safe Memorial Day weekend.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

MR. BARNES RETAINED ON NEW WASHINGTON FORECLOSURE CASES; JUDGE ANNOUNCES THAT SECURITIZATION CASE “WILL NOT FALL ON SUMMARY JUDGMENT”

April 30, 2018

Mr. Barnes has been retained on several new foreclosure cases in Washington, where he currently works with local WA counsel Jill Smith, Esq. on other pending cases at both the trial and appellate levels. Mr Barnes had been working on the pending cases with his prior local counsel James A. Wexler, Esq., who passed away on December 27, 2017. Ms. Smith has substituted in for Mr. Wexler.

The cases involve several securitization entites, including Wilmington Trust Company and Bank of New York Mellon both acting in the capacity of “trustee” for a mortgage securitization trust. In each of the cases, Mr. Barnes has amended the pleadings to assert various issues related to standing and the foreclosing party’s alleged ability to enforce the Note and Deed of Trust and has propounded discovery as to these issues.

In one of the cases, the presiding Judge informed counsel for both parties, following filings by Mr. Barnes and his admission to the Court in that case, that the case is “extremely complicated” and thus “will not fall on summary judgment”.

In view of this increase in cases in WA, Mr. Barnes is contemplating opening a branch office in the Seattle area. We will keep our readers advised of developments.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

KINGS COUNTY (BROOKLYN) NEW YORK HAS 8,000 ACTIVE FORECLOSURE CASES AND MORE ON THE WAY

April 11, 2018

This morning, Mr. Barnes appeared in court and was admitted pro hac vice in a foreclosure case in Kings County (Brooklyn), New York. The court’s clerk advised Mr. Barnes that the County has over 8,000 active foreclosure cases with just three (3) Judges, and with more cases on the way.

Another attorney advised Mr. Barnes that literally thousands of new foreclosure cases will be filed in the coming months in Kings County due to the resetting of interest rates on numerous loans previously modified, which the homeowners will not be able to afford as the reset interest rates will substantially increase their monthly payments.

Many New York homeowners do not understand the foreclosure process in New York including the “FRP” (Foreclosure Resolution Part) procedures for attempting to settle a foreclosure case. Per previous posts, Mr. Barnes and his local NY counsel have and continue to be involved in assisting homeowners through this process and to help them save their homes from foreclosure.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

CALIFORNIA JUDGE HITS BANK OF AMERICA WITH $46M IN FINES FOR DISHONESTY AND HEARTLESS CONDUCT DURING WRONGFUL FORECLOSURE

April 10, 2018

Finally, some justice for homeowners. A California Judge has issued a 107-page opinion in which he slays Bank of America for “brazen and heartless conduct, institutional obstinance, and dishonesty” during a wrongful foreclosure which involved BOA inviting and entertaining 20 loan modification applications since 2009 which the Judge found that BOA had no intention of granting. All of the applications and supplements were deemed by BOA to be “lost”, “insufficient”, or “incomplete”.

The female homeowner suffered PTSD as a result of BOA’s incomprehensible conduct, and her husband attempted suicide as a result of the stress inflicted by BOA’s actions.

Judge Klein hit BOA with fines totaling $46M. The full text of the opinion can be found by googling “California Judge Bank of America $46M”.

We hope that this is a bellwether of things to come, and that more Judges will refuse to permit, and will severely punish, the banksters and their pawns (the servicers) which continue to frustrate homeowners by simultaneously interposing every obstacle to a homeowner obtaining relief while actively pursuing their real goal, which is to take someone’s home under the guise of “your loan modification request has been denied.”

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

NEVER TRUST A SERVICER, INCLUDING SLS AND OCWEN

April 4, 2018

Recent experiences with “servicers” have lead to this post, which is a cautionary warning for all homeowners dealing with “servicers” on any level.

As we all know, Ocwen Loan Servicing has been sued for fraud by the government (again). Despite this, Ocwen continues to lie and commit fraud upon homeowners by first agreeing to payment plans and loan resolutions only to then reneg on their prior position, and in more than one case, claiming that it did not receive modification payments and declaring the homeowner to be in “default” despite the fact that Ocwen signed for receipt of the payments.

In another case, SLS made a detailed settlement offer which the homeowner accepted. When the homeowner requested that the settlement be reduced to writing, SLS then attempted to impose several harsh additional conditions on the settlement which were not part of the offer made by SLS and were thus not accepted by the homeowner.

The lesson to be learned here, in the vernacular, is that one can never, ever, trust a servicer under any circumstances. They will lie, fabricate events, fail to disclose the truth, and engage in fraud for their own selfish ends.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

COLORADO DISTRICT JUDGE ORDERS DEUTSCHE BANK TO PROVE UP OWNERSHIP OF NOTE IN CRCP 120 PROCEEDING

February 21, 2018

A Colorado District Judge has ordered Deutsche Bank to prove up a claimed “original” Note in a CRCP 120 proceeding. The attorney for Deutsche Bank requested the Judge to take “judicial notice” of a claimed “original” Note in an apparent effort to bypass the evidentiary proof requirements, and without any evidence being presented that the alleged Note is in fact an “original”. Section 202 of the The Colorado Evidence Code, which governs requests for judicial notice, does not provide for a court to take judicial notice of a disputed document.

The borrower disputes the claimed “original” nature of the Note given that (a) the original lender filed for bankruptcy in 2007, and (b) there was no evidence that the Note was either a retained asset of the bankrupt original lender or that it was sold before the bankruptcy was filed. There is thus no evidence as to how Deutsche Bank could be in possession of the alleged “original” Note.

Jeff Barnes, Esq. represents the borrower, who has also raised the defense that the Note is not enforceable as it is a prohibited “negative amortization” Note, as “neg am” loans were declared to be illegal by Colorado statute long before the origination of the loan. The Judge remarked that the case has significant legal issues as to real party in interest under CRCP 17 and the case law in Colorado.

The Judge thus declined to entertain Deutsche Bank’s CRCP 120 request for an Order Authorizing Sale, and has scheduled a full evidentiary hearing on all issues for March 9, 2018.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

LITIGATION ACADEMY OF FLORIDA TO BEGIN SCHEDULING CLASSES IN JUNE, 2018

February 5, 2018

Over the years, a significant number of people, both clients and others, have requested if Mr. Barnes, who is a former teacher and professor, provides classes to students in college who are interested in becoming litigators. Many students who are “pre-law” express an interest in learning about the litigation process including drafting of lawsuits, motions, and discovery, and also arguing motions and trying a case, but do not have the opportunity to obtain this type of experience while in college.

Litigation Academy of Florida, Inc. was formed today in response to this request. Mr. Barnes, who will be conducting the course, has been a career litigator for almost thirty (30) years, and developed curricula while a teacher before becoming an attorney. He has also given numerous CLE seminars to attorneys which have been accredited by The Florida Bar and the Supreme Court of Ohio, and also recognized for CLE credit in Pennsylvania.

The one-week course is designed for college students who are interested in pursuing a career as litigators. The course will take the students through the various court systems, drafting of lawsuits and motions, serving discovery, and actual argument of a significant motion (such as a Motion to Dismiss or for Summary Judgment) or a simple trial. The students will be grouped into teams who will argue against each other, and so that all students will be able to observe the presentation and argument of a significant motion or a simple trial.

Classes are anticipated to be held in June and August, 2018, after the time when college students are finished attending their regular classes so as to not interfere with college studies and exams. The classes will begin at 8:30 a.m. on a Monday and run through 5 p.m. on the Friday of the scheduled week, with oral argument for motions and trial(s) being held on the Friday. Written materials will be provided, and participants who complete the course will be issued a Certificate as well.

In view of the intensive nature of the one-week course, class size is limited to twenty (20) students per session (either June or August). The course will be held in the Atrium Building at 1515 North Federal Highway, Boca Raton, Florida 33432.

Those who are interested in the course may inquire by going to the “Contact Us” link on this website, or e-mailing Mr. Barnes at jeff@wjbarneslaw.com. Classes are limited to college students who are “pre-law” or who are genuinely interested in pursuing a career in litigation.

Jeff Barnes, Esq.