November 1, 2016

A Colorado (state) District Court has entered an Order which has upheld three affirmative defenses to a Forcible Entry and Detainer (FED/eviction) action. Jeff Barnes, Esq. represents the homeowners, who have been battling Citibank as the securitization trustee claiming to have inherited rights to the Note and Deed of Trust on a loan which was originated by a third party.

Citi prevailed in the underlying CRCP 120 action, which is Colorado’s “probable cause” procedure to begin the non-judicial foreclosure sale process. The Rule provides for the filing of a separate action to contest any Order Authorizing Sale entered as a result of a 120 proceeding. As those of you who follow this website know, Rule 120 is under attack, and Mr. Barnes will be speaking at the hearing on proposed changes to the Rule in Denver on November 10.

Citi later filed a FED action, to which the homeowners raised several affirmative defenses. FED cases are heard by the County Court. The County Court Judge determined that he was without jurisdiction to determine the merits of the asserted affirmative defenses, and stayed the FED action pending a determination on the merits of the defenses by the “District Court”. As several of the defenses were based on state law, the homeowners filed an action for Declaratory Relief and Quiet Title in the state District Court for a determination of the merits of the defenses. Citi filed a Motion to Dismiss that action.

Yesterday, the District Judge denied Citi’s Motion to Dismiss as to three of the five affirmative defenses, which sound in issues relating to an undetermined tenant in common interest as to one of the homeowners; no clear chain of title as to the loan; and that the loan is owned by a third party. The District Court ordered Defendant Citi to file an Answer to those defenses and to the remainder of the Complaint.

The first defense related to the (then) lack of a ruling on the homeowners’ objection to sale, which was denied. The fifth defense is a procedural defense: that issues as to title must be resolved before issues of possession are determined in a FED action. This is why the County Court Judge stayed the FED case: so that the merits of the “title” related issues could be adjudicated first (which is the law in Colorado).

The homeowners will now proceed to discovery on the issues arising out of the preserved defenses, two of which relate directly to the alleged standing of Citi to do anything.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 7, 2016

Today, FDN network attorney Jason Estavillo, Esq. was successful in defeating Bank of America and HSBC Bank on their Motion for Summary Judgment or in the Alternative Summary Adjudication in San Francisco Superior Court. Mr. Estavillo represents the homeowners.

The court denied BOA’s and HSBC’s MSJ as to all counts of the homeowners’ Complaint, sounding in Cancellation of Instruments, Violations of Business and Professions Code Sec. 17200 et seq., Declaratory Relief, and Breach of Contract. The Court held that BOA and HSBC “failed to show that the beneficial interest in the Note and Deed of Trust were “transferred” to Countrywide Financial.”

BOA and HSBC attempted to prove the alleged “transfer” of the loan through a third party letter, but the court held that the letter was not admissible evidence and even if it was, “it does not show that Countrywide Financial ever “accepted” it or even paid the purchase price. Additionally, no evidence is presented to show a connection between Countrywide Financial and Bank of America, N.A. as successor by merger to BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing LP.”

Summary Judgment was denied as to all causes of action. The case now proceeds to trial.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 5, 2016

The United States Court of Appeals for the 10th Circuit (which is the Federal appeals court for Federal cases filed in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) has issued a 38-page opinion which reversed the trial court’s dismissal of RICO and other claims filed by homeowners against Bank of America and a company which it hired in connection with fraudulent administration of HAMP loan mod applications. The case is George et al. v. Urban Settlement Services and Bank of America, No. 14-1427 (10th Cir., Aug. 15, 2016).

The homeowners alleged that the Defendants fraudulently represented that if the homeowners made all of their TPP payments during the trial period that BOA would sign off on their loan modifications and the modifications would become permanent. Although the homeowners complied with all of the terms of the TPP and BOA sent permanent loan mod applications which were completed by the homeowners, BOA failed to modify the loans.

The 10th Circuit cited decisions from the 1st, 7th, and 9th Circuits which held that the promises made in TPP documents were enforceable, and found that the homeowners had alleged sufficient facts to support claims under RICO against BOA and the company it hired, and for promissory estoppel against BOA.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 5, 2016

FD Seminars presenter Richard Kahn has obtained four (4) CLE credits for the courses which he will be teaching at the Foreclosure Defense seminar series. The Florida Bar has accredited his courses for four General CLE credits, and also 4 credits for business litigation and 4 credits for real estate.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 30, 2016

The FDSeminars Foreclosure Defense seminar has sought to add additional CLE credits so that the total credit for each seminar will be seven (7) credits. The additional credits being sought are for the courses to be taught by securitization expert Richard Kahn, who requested CLE accreditation from The Florida Bar for his presentations at the seminars. Mr. Barnes previously obtained accreditation for five (5) CLE credits for the courses which he teaches at the seminars.

Mr. Kahn is the author of two books on securitization and using securitization information in defending foreclosures. He and Jeff Barnes, Esq. will be the keynote speakers at the upcoming seminars in Oakland (San Francisco/East Bay), California on Friday, October 14, 2016, and in Irvine (Orange County) California on Friday, November 18, 2016.

Today, we received notification from a Pennsylvania attorney who attended our seminar in New Jersey that the seminar has been approved for 5.50 CLE credits by the Pennsylvania Continuing Legal education Board.

Information and registration may be obtained by going to the website, www.FDSeminars.com under the “SeminarInfo” link.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 28, 2016

The Colorado Supreme Court is holding a public hearing on Friday, November 10, 2016 as to proposed amendments to CRCP 120, which Rule governs the initiation and proceedings for non-judicial foreclosures in Colorado. Mr. Barnes’ Firm has been defending CRCP 120 proceedings for over eight years, and has seen first-hand the problems with the existing procedure. Mr. Barnes will be speaking at the meeting as to proposed amendments to the Rule.

The hearing will be held in the Colorado Supreme Court courtroom, 2 East 14th Avenue, 4th Floor, Denver, Colorado on Friday, November 10 beginning at 2:30 p.m. The hearing is open to the public.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 19, 2016

Apparently, U.S. Bank, N.A. is still securitizing mortgage loans into new securitization trusts. Today, we received an Order substituting the “bank” Plaintiff with U.S. Bank as “trustee” of a 2016 securitization trust (the RMAC 2016-CTT Trust).

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 19, 2016

We have received praises and kudos from those who attended the first in the series of Foreclosure Defense seminars, which was held last Friday in Parsippany, New Jersey. The seminar was attended by attorneys and paralegals who came from Pennsylvania, New York, New Jersey, and Connecticut, with one attendee having come all the way from Tennessee. The seminar was haled as “exceptional, A+, 5 star” and “money well spent”, with the presentation being praised as “thorough and on point, entertaining, and memorable”.

The next seminar is scheduled for Friday, October 14, 2016 in the San Francisco Bay area. Registration may be done by going to the seminar website, www.FDSeminars.com.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 12, 2016

Today, FDSeminars has received, from The Florida Bar, formal accreditation for all five of the courses being taught by Jeff Barnes, Esq. at the upcoming Foreclosure Defense Seminars including that scheduled for this Friday, September 16, 2016 in Parsippany, New Jersey. The Florida Bar CLE accreditation confirmation documents will be given to each attorney participant at the seminar. Each course has been accredited for one hour of general CLE credit.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 11, 2016

Summary judgment was denied to Bank of NY as the claimed “trustee” of a 2005 CWALT (Countrywide) securitization involving America’s Wholesale Lender (AWL) in Sevierville, Tennessee on Friday, September 9, 2016. after extended argument before the Court. Jeff Barnes, Esq. represents the homeowners together with local TN counsel and Tennessee State Representative Andrew Farmer, Esq. Mr. Barnes drafted all of the legal memoranda and argued the case before the Court last Friday.

Both sides had filed Motions for Summary Judgment: the homeowners on the basis that AWL never existed (per the findings of the St. Lucie County, FL Circuit Court in the Dimant  decision), and BNY based on a “blank endorsement” theory. After extensive briefing and argument, the Judge stated: “the issues in this case are greatly disputed. There are issues as to whether the lender existed; who owns and loan; and whether it has been paid off”.

This is a significant victory in multiple respects: it calls into question the alleged “existence” of AWL, which claims in the Deed of Trust to be “a corporation organized and existing under the laws of the State of New York” which the Dimant court found not to be true, and in fact determined that AWL never existed at all. One of the significant legal issues is whether a non-existent lender may (a) transfer any interest in the Note and mortgage instrument (here, a DOT) to anyone, and (b) whether a downline transferee may seek to enforce an interest which the original alleged “lender” never had.

Another significant issue is whether the loan has been paid off through credit enhancements, outright insurances, or otherwise (e.g. though a credit default swap), which directly affects BNY’s claim of the alleged amount owed. The homeowners’ expert, former Wall Street securtization professional Richard Kahn, has already testified that there are protections in place to pay in the event of borrower defaults, and that the borrowers paid for these protections.

The case now proceeds to trial, which is set as “number 1” beginning Monday, October 17, 2016.

Jeff Barnes, Esq/, www.ForeclosureDefenseNationwide.com