Historically, trials in eviction cases were conducted by the court without a jury. The argument by the “bank” and servicer attorneys was that an eviction is the product of a foreclosure, and the loan documents contained a waiver of jury trial provision which, they argued, applied to an eviction arising out of a foreclosure. As eviction actions are governed by statute and the Colorado statutory framework adopts jury trials in specific situations, the issue came before the Supreme Court of Colorado.

On October 21, 2024, the Colorado Supreme Court issued it opinion in Mercy Housing Management Inc. v. Bermudez, 2024 CO 68, which reversed the County Court’s denial of Bermudez’ request for a jury trial in an eviction (FED) case. The opinion details the history of the right to a jury trial in specific actions including actions seeking possession and recovery of specific real property.

The Housing Group and the County Court took the position that there was a distinction between actions to recover specific real property versus those for possession of real property in terms of whether a jury trial was proper. The CO Supreme Court found no such distinction, and reiterated the right to a jury trial in eviction actions.

Mr. Barnes is currently defending an eviction case in Colorado which was to be scheduled for trial in November of 2024. The case arises out of two CRCP 120(d) challenges to two non-judicial foreclosures filed by Deutsche Bank as Trustee of a 2006 securitized mortgage loan trust. The first matter was decided adverse to the client and is currently the subject of an appeal. Deutsche Bank had removed the client’s CRCP 120(d) challenge to the nonjudicial foreclosure to Federal Court, which was ultimately remanded and appealed after an adverse decision dismissing the client’s CRCP120(d) Complaint which sought to nullify an Order Authorizing Sale entered in the 120 proceeding. While the matter was pending in Federal Court, Deutsche Bank filed a second CRCP 120 nonjudicial foreclosure case notwithstanding that the first 120(d) challenge remained pending..

After remand, Deutsche Bank filed an eviction action and requested that it be set for trial. The client demanded a jury trial, which was done before the Mercy Housing opinion was issued. A pretrial conference was held just days after the opinion issued, and the County Court was presented with the issue of setting a jury trial. Deutsche Bank’s counsel moved to withdraw from the case shortly thereafter and has not had any new counsel enter an appearance in the case.

The County Court Judge has given Deutsche Bank a limited period of time to retain new counsel and enter an appearance, otherwise the eviction case will be dismissed. Meanwhile, the appeal of the first foreclosure decision remains pending, as does the appeal of the second adverse decision, both of which concern the same loan, the same real property, the same borrower, and the same essential legal issues relating to whether Deutsche Bank ever acquired any enforceable interest in the loan. The Colorado Court of Appeals denied the client’s motion to consolidate the two appeals, both of which are in the briefing stage.

Jeff Barnes, Esq. for ForeclosureDefenseNationwide.com

December 12, 2023

In a 53-page decision following a 3-day trial, a South Carolina Master in Equity has denied the remedy of foreclosure to U.S. Bank as a claimed securitization trustee. The litigation was ongoing for 12 years, and the Plaintiff took inconsistent position that the Note existed, then claimed it was lost, later claiming it was found. The ruling details the myriad failures of the Plaintiff as to lack of evidence, evidence which was not credible, and a litany of misconduct on the part of the Plaintiff throughout the history of the case.

Jeff Barnes, Esq. represented the homeowner for practically the entire 12-year history of the case and tried the case with local South Carolina counsel William “Bill” Sloan, Esq.

Jeff Barnes, Esq., Foreclosure Defense Nationwide

November 20, 2023

A private investigator who performs detailed mortgage loan audits has located the most incredible admission in a PSA::

(b) Purchaser acknowledges, understands, and agrees that Sellers have constructive or actual knowledge that fraud, misrepresentations, or omissions occurred in connection with the origination or modification of some or all of the Mortgage Loans and Sellers may have undertaken investigations or other steps with respect to some or all of such instances of fraud, misrepresentation, or omission. Purchase acknowledges, understands, and agrees that Sellers will not identify the Mortgage Loans subject to Seller investigations, nor will Sellers provide any information about such Seller investigations. Purchaser expressly assumes all risks arising from fraud, misrepresentation, or omission in connection with the origination or modification of te Mortgage Loans.

So the sellers of the loans to the securitizations admit to engaging in fraud and misrepresentation, will not give any details as to this, and the buyer buys admittedly fraudulent loans and takes all responsibility for them.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 18, 2023

A New Mexico District Judge has today denied Fannie Mae’s motion to reinstate a case which was dismissed for lack of prosecution. The homeowner is represented by Jeff Barnes, Esq., who previously vacated a judgment in favor of FNMA. Although FNMA claimed that it was going to ask the Court to reinstate the case, the Court declined to do so, ruling that FNMA had not demonstrated excusable neglect or good cause for its ignoring the case for an extended period of time without prosecuting it.

FNMA claimed that the delay in prosecution was due to “pending receipt of a client executed Affidavit attesting to the accuracy of the amounts Plaintiff will seek in Judgment.”

New Mexico law permits the dismissal of an action where 180 days pass with no activity. Here, the Court did not dismiss the action for lack of prosecution until 394 days had passed with no activity, which was the period beginning from the date that the Final Judgment was vacated (that being May 10, 2021) to the date that the Court issued its Notice of impending dismissal for lack of prosecution (which was on June 8, 2022).

New Mexico case law requires a party to demonstrate “exceptional circumstances” to support a request for reinstatement of a case after a dismissal for lack of prosecution. Mr. Barnes cited to a case from the Supreme Court of New Mexico which affirmed the denial of a request for reinstatement where there was no significant activity for 1.5 years.

The homeowner was and is represented by Jeff Barnes, Esq. together with local New Mexico counsel Ana Garner, Esq.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 22, 2022

The Foreclosure Defense Nationwide network has formally teamed up with Dr. Andre Larabie, who has spent over 25 years as a professional debt negotiator in connection with commercial, business, and residential loans. W.J. Barnes, P.A. has worked with Dr. Larabie for over 22 years in many different litigation matters across the United States, and continues to do so.

Dr. Larabie is a member of Foreclosure Resolutions and Solutions LLC (website: www.foreclosureresolutionsandsolutions.com), and is currently working with Mr. Barnes on the formation of another entity and website to assist homeowners with resolving mortgage loan issues including negotiation, document review and preparation, mediation assistance, and expert witness services.

Dr. Larabie is also the President and founder of Commercial Debt Negotiation which was founded in 1994. He has authored many books on the subject. The website is: www.commercialdebtnegotiation.us.

Jeff Barnes, Esq., Foreclosure Defense Nationwide

January 6, 2022

Today, a St. Johns’ County, Florida Circuit Court Judge denied a Motion to Dismiss the homeowners’ Second Amended Complaint against Ocwen Loan Servicing and Homeward Financial which seeks to enforce what the homeowner Plaintiffs assert is a settlement agreement reached as the result of a confirmed Chapter 13 Plan by which Ocwen, as the secured creditor, accepted less than the amount claimed by Ocwen. Jeff Barnes, Esq. represents the homeowner Plaintiffs and argued the Motion via Zoom today.

The matter arose out of a foreclosure. The homeowners assert that Ocwen and Homerward, through their actions in accepting the Plan and Plan payments and inactions as well in failing to object to the Plan, failing to appeal the Plan Confirmation Order, and failing to make the appropriate filings in the Bankruptcy Court to preserve alleged rights, resulted in a compromise and settlement of Ocwen’s claim. Ocwen admitted that it “assumed” that the Proof of Claim “covered” Ocwen without Ocwen having to undertake any further action. The Judge ruled that the matters in the Motion to Dismiss were appropriately matters of defense.

Ocwen and Homeward have taken the position that the Plan payments constituted “adequate protection” payments. The homeowners have asserted that once the Plan was confirmed, the payments made under the Plan were payments to creditors on their claims, and not “adequate protection”. Ocwen and Homeward have never denied that they did not object to the Plan, did not appeal the Plan Confirmation Order, and did not file any other papers in the Bankruptcy to place anyone on notice that they intended to seek additional monies from the homeowners over and above.

The Judge stated that the matter now proceeds into discovery.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 13, 2021

W.J. Barnes, P.A. now accepts payments by standard credit cards such as MasterCard, VISA, and American Express through a company which offers this service to law Firms at no cost to clients. Please e-mail our paralegal Tiffany at [email protected] for information.

Clients had requested the ability to pay by credit card for years, but the fees and quotas made this impracticable until now, as the service we have contracted with has no minimums, quotas, or fees to clients.

Jeff Barnes, Esq., ForeclosueDefenseNationwide.com

August 11, 2021

A phenomena has recently emerged in mortgage loan situations across the United States involving homeowners’ attempts at loan modification and other forms of loss mitigation where servicers are engaging in what appears to be intentional misconduct, such as first advising homeowners that their applications are complete but thereafter advising, on some occasions the next day, that their application is “incomplete” without advising what information or documentation is missing and notwithstanding that correspondence from the servicer states that it will notify a homeowner of what information or documentation is missing.

In other situations, denials are being issued on the alleged ground of “exceeding the number of times you can request modification” where there has been no prior request to the specific servicer and where the prior application was made over 10 years ago, and notwithstanding the fact that the modification request was made due to a change in financial circumstances and where the servicer’s guidelines provide that applications for modification may be made due to a change in financial circumstances.

In one case, the servicer changed its position no less than 4 times in as many months, first advising the homeowner that the application was complete, then stating that it was incomplete, then reversing itself again to state that it was complete, and on and on.

In another case, the homeowners applied for a loan modification over 15 years ago and there was never a decision on the application. The servicer’s principal, a “trustee” of a securitization Trust, then filed a second foreclosure action which has taken the position that the recent loan modification application cannot stand as there was a prior application.

In yet another case, the servicer was provided with a complete loan modification application no less than five (5) times. The servicer never advised that the application was incomplete, and the homeowner never received any letter from the servicer as to the application. An alleged “denial letter” was first produced over a month after the homeowner filed a Motion in the foreclosure case asserting that applicable Code of Federal Regulations precluded the advancement of the foreclosure once the completed loan modification application was submitted, with the letter being dated less than one week after the homeowner submitted his complete application to the servicer. The letter claimed that the application was denied because there was a prior application and thus the homeowner had “exceeded the maximum number of opportunities” to seek loan modification even though (a) no prior loan modification had been submitted to that servicer, and (b) the prior application was submitted to a different entity over 13 years ago.

It thus appears that it is time to sue these servicers for their misconduct including violating the very provisions of their own documents upon which homeowners rely in applying for a loan modification in the first place; failing to provide information which their own documents say they will provide; and to stop the nonsense which appears to be interposed for no other reason than to permit foreclosures to proceed. Significant here is that there is evidence that servicers are paid a fee for helping a foreclosure to proceed (by denying a request for loan modification), thus indicating that servicers may be part of a corrupt enterprise.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

July 15, 2021

A Charlotte County, Florida Circuit Judge has today entered an Order which vacated a Judicial Default and Final Summary Judgment of Foreclosure on the granting of a Sworn Motion of the homeowner prepared and filed by Jeff Barnes, Esq. The July 7, 2021 sale was previously cancelled.

The homeowner filed a pro se appearance in the case and requested additional time to respond to the Plaintiff’s Complaint and Amended Complaint. The Plaintiff thereafter moved for a judicial default. The Court entered a judicial default one day after the receipt date of the request for judicial default given Florida’s 5-day mailing rule.

The Court conducted a hearing, and ultimately found that the judicial default was entered in contravention of law as it was entered without affording the homeowner a reasonable time to respond to the request for a judicial default. The homeowner’s Answer and Affirmative Defenses, which were filed with the Sworn Motion, have been deemed filed.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 29, 2021

A District Judge in Albuquerque, New Mexico today granted a homeowner’s motion to vacate a default judgment of foreclosure and to void the foreclosure sale. The homeowner is represented by Jeff Barnes, Esq. who prepared the motion and briefing and argued the matter this morning.

The homeowner had suffered years of health problems both personally and as to her family. Her mother passed away in her arms, and she had also been the victim of domestic abuse. Fannie Mae filed a foreclosure action and obtained a default judgment. All of this occurred while the homeowner was being devastated with personal tragedies and monumental life crises of her own and as to her family, and she was also under the understanding that foreclosures had been abated due to COVID.

The property was sold to a third party. Fannie Mae must now return the proceeds paid at the sale, and the property will be deeded back to the homeowner.

The Motion was predicated upon New Mexico rules of procedure which permit the Court to vacate a judgment and orders where there is a reason why the lawsuit was not responded to and where there is a defense, and also where exceptional circumstances exist to vacate a judgment or order.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com