March 25, 2016

Jeff Barnes, Esq. has been admitted pro hac vice in connection with a foreclosure case in Lincoln, Lancaster County, Nebraska. The case involves issues relating to MERS and the alleged standing of the Plaintiff to foreclose. As those of you who follow this website know, the decision in MERS v. Nebraska Dept. of Banking and Finance was one of the seminal cases establishing what MERS is and is not, and was the case where MERS’ counsel admitted to the Supreme Court of Nebraska that MERS does not own or hold promissory notes, does not lend money, does not extend credit, etc.

Mr. Barnes is also pending admission PHV in Stamford, Connecticut in connection with a foreclosure matter involving Wells Fargo as the claimed trustee of a securitization trust, the defunct American Brokers’ Conduit, and issues of alleged transfer of the loan from the originating lender. Mr. Barnes is scheduled to argue a Motion to dismiss the foreclosure with prejudice at a hearing in the Stamford Court on April 7, 2016.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 23, 2016

The following is a true story.

Wells Fargo filed a foreclosure action in Pinellas County, Florida and allegedly effected service of the Complaint by “publication”. The homeowner resides out of the United States and has for 26 years, as was known to Wells Fargo at all times including from the time the loan was originated through World Savings (which WF claimed to have later merged with). However, Wells Fargo specifically instructed the process server, in writing, not to attempt service at the homeowner’s known address outside of the United States. Wells Fargo thereafter obtained a “default judgment”.

Jeff Barnes, Esq. was retained to attack the Final Judgment, and was successful in having it vacated due to lack of proper service. The Court itself stated at the hearing that the process server’s affidavit stated on it that WF had instructed the process server not to attempt service at the homeowner’s known address, which is a deliberate act in violation of Florida’s service of process statutes.

After Mr. Barnes had filed the Motion to Vacate the Final Judgment thus putting Wells Fargo and its counsel on notice thereof but before a hearing thereon could be scheduled, Wells Fargo sold the property to a third party. The Court ultimately granted the Motion to Vacate. However, WF refused to take any action to void the conveyance to the third party, thus depriving the homeowner of his rightful interest in the property as evidenced by the Court’s vacatur of the Final Judgment.

Wells Fargo’s counsel refused to take any action to remove the alleged new “owner”, and has failed to compensate the homeowner in any respect.

U.S. Bank as Trustee for a private securitization thereafter filed a “new” Complaint seeking to foreclose (again). The homeowner filed a Motion to Dismiss due to a conflict between the allegations of the Complaint and the exhibits attached thereto.

U.S. Bank then “filed” an Amended Complaint through the same law Firm which had represented WF in the prior phase of the action, but did not copy Mr. Barnes with the AMC (just as these same attorneys did not serve the original Complaint on the homeowner). The attorneys then sought a “default”, which they did copy to Mr. Barnes, who notified immediately the attorneys of their failure to copy him with the Amended Complaint. The AMC was eventually forwarded, and Mr. Barnes has, on behalf of the homeowner, filed an Answer and Affirmative Defenses to the AMC and a Counterclaim against U.S. Bank for conversion of the property. The Counterclaim contains a reservation to seek punitive damages against U.S. Bank.

The Amended Complaint claims that U.S. Bank came into an interest in the Note through an alleged “Allonge”.  There is no evidence that the “Allonge” existed at the time the Note was executed and it could not have, as the Allonge is executed by Wells Fargo whereas the Note was in favor of World Savings. The homeowner has alleged that the Allonge was fabricated for purposes of the litigation pursuant to the Wells Fargo Home Mortgage Foreclosure Attorney Procedure Manual, which has been called the “Wells Fargo Fraud Manual” as it instructs WF’s foreclosure attorneys how and when to manufacture documents for purposes of foreclosure when such documents are otherwise missing. The Manual was previously circulated on the web and is readily available.

In an ironic twist, U.S. Bank has named, as a Defendant, the third party who WF sold the property to. It will be interesting to see how this alleged purchaser responds to being sued by the claimed successor of the very bank which sold him the property to begin with.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 15, 2016

Yesterday, a Hamilton County, (Chattanooga) Tennessee Circuit Judge declined to grant summary judgment to FNMA in a post-foreclosure FED (forcible entry and detainer) case based on the homeowner’s assertion of a defense of wrongful foreclosure. The homeowner is represented by Jeff Barnes, Esq. and local Tennessee counsel Fred Clelland, Esq. Mr. Barnes prepared the opposition memorandum, client affidavit, and argued the matter in open court in Chattanooga yesterday.

The homeowner had been defending the case pro se. After losing the underlying foreclosure and the FED portion of the case in Sessions Court, she appealed the FED portion to the Circuit Court and then retained Mr. Barnes and Mr. Clelland.

Bank of America had instituted the underlying non-judicial foreclosure proceeding. FNMA was the successful bidder at the sale. FNMA moved for summary judgment in the FED case on the issue of possession. The homeowner’s affidavit set forth facts which demonstrated that BOA had manufactured a fraudulent foreclosure by failing to credit payments made; refusing to acknowledge payments actually made and retained by BOA; diverted payments to accounts which did not credit the payments to principal and interest; wrongfully increased the escrow requirements without notice as required by the loan documents; and wrongfully forced the homeowner to maintain an escrow account after PMI was removed, which is also illegal.

Mr. Barnes argued Tennessee appellate case law which was practically on point (and which also involved FNMA attempting to obtain summary judgment of possession after purchasing property at a foreclosure sale) which holds that when a homeowner raises a defense of wrongful foreclosure alleging certain facts, there is a question of fact as to whether the foreclosing party passed good title to the purchaser at the sale. Without passing clear or good title, there is no “landlord/tenant” relationship created which would permit a judgment of possession, and there are questions of fact which preclude summary judgment.

The Court thus denied FNMA’s Motion for Summary Judgment. The case now progresses into discovery.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 11, 2016

As those of you who follow this website know, Mr. Barnes and his local counsel have filed Jesinoski-based rescission actions in several states. Pushback from the bankster attorneys has been fierce and arrogant, and in one case in Tennessee, downright nasty and unprofessional. Attorneys for the “bank” Defendant screamed at and threatened Mr. Barnes’ local counsel, claiming “You and that guy Barnes are just going around the country getting people free houses!!!”.

The truth is that Mr. Barnes and his local counsel have, for now going on 8 years, continuously advocated the homeowner’s rights and interests and have steadfastly challenged the banksters’ and servicers’ alleged claims of being the “person entitled to enforce” the Note and mortgage instrument (whether it be a Mortgage, Deed of Trust, or what is called in Georgia a “Security Deed”). As our followers know and as demonstrated by the archives section of this website (to the right), the fight has been long and hard, but we are and will continue to keep fighting against the Wall Street/investment bank goliaths.

No one has ever received a “free house”. The accusation itself is untrue, unless applied to the banksters who, in most of the cases we deal with, are not even the lender and who most likely have been paid more than once and up to perhaps 30 or 40 times over on the Note given the structure of securitizations and tranche assignments when viewed against the portfolio insurances, reserve pools, credit default swaps, and other “protection mechanisms” which insure that the banksters get paid regardless of any claimed “default” on the part of the borrower. The foreclosure proceedings are thus designed to give the downline claimed transferees a “free house” with minimal effort, and after they have already been paid on a Note that they did not even originate.

Jesinoski has opened up a plethora of new legal issues. In fact, in one Motion to Dismiss filed by the “bank” in one of the pending cases, counsel for the “bank” admits that the courts of that state have not addressed the precise issue framed by the complaint. Given the truth of that statement (that the case is in fact one of “first impression” in that state), it all but insures that the non-prevailing party will take any decision to the U.S. Court of Appeals for that jurisdiction, and to the United States Supreme Court thereafter if deemed necessary.

What irks the banksters is that homeowners are demonstrating that they will no longer be treated like cattle to the slaughter, nor can the banksters simply steamroll over and trample upon homeowner’s rights and permit the banksters to continue to perpetrate fraudulent foreclosures. Banksters view homeowner defenses to foreclosures as roadblocks to their business model to obtain “free houses” for little or no cost or effort.

The battle here has just begun.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 3, 2016

Jeff Barnes, Esq. of W.J. Barnes, P.A. was previously retained to defend a foreclosure instituted by Bank of America against a homeowner in a Nebraska foreclosure case. BOA filed a Motion for Summary Judgment (MSJ) which is being argued later this month by Mr. Barnes, who has been admitted pro hac vice to the Lancaster County, Nebraska District Court.

There are several critical issues in the case, including whether MERS had any authority to act at all and especially in light of the Supreme Court of Nebraska’s prior decision in MERS v. Nebraska Department of Banking and Finance, where MERS’ counsel made numerous admissions including that MERS has no interest in promissory notes and disclaimed the authority of MERS to act in certain situations. BOA has attempted to distinguish this case on the basis of a recent decision from the Supreme Court of Nebraska. However, that decision did not involve or raise a specific challenge to MERS’ alleged authority, which was made in the case which Mr. Barnes will be arguing as part of the issues raised by Mr. Barnes in the pleadings and as part of the homeowner’s opposition to BOA’s MSJ.

One of the other central issues involves a “UCC 3-308 challenge”, which is a challenge to the alleged signature of the person whose name appears on the alleged “endorsement” on the Note. Nebraska’s UCC and case law which discuss issues of negotiation raise issues as to whether the party seeking to enforce the Note is a “holder in due course”, and section 3-308 of the UCC applies to “each” signature on a Note without exception in the statute. The homeowner has raised these issues as well through Mr. Barnes.

The ultimate decision on the MSJ at either the trial or appellate level has significant implications for homeowners in Nebraska and other states as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 26, 2016

The telephones in our California branch office are experiencing problems as they are not getting power. Incoming calls can leave messages, but we cannot call out. Our telephone carrier has advised us that it is not a problem on their end, and that it is some internal problem with the source which supplies the independent power to the phones, which is separate from the general electrical system in the office building. We have a tech coming in to address this ASAP. Please e-mail us if you cannot get through via phone.

Jeff Barnes, Esq.

February 18, 2016

This morning, the Supreme Court of California issued its very detailed and extremely well articulated 30-page decision in the matter of Yvanova v. New Century Mortgage, Supreme Court case number S18973, which approved Glaski (which permits borrowers to challenge void assignments) and disapproved the Jenkins/Gomes line of cases, which had not permitted borrowers to ever challenge assignments under any circumstances on the “not a party to the assignment” theory. The decision was unanimous, meaning that all seven Justices of the Court agreed with the result with no dissent.

The Court stated that Jenkins painted the brush “too broadly”, and failed (like several unreported Federal court decisions) to recognize the legal distinction between a challenge to a void assignment and one which was merely voidable. On that issue, the Court defined a “voidable” type challenge as one where the borrower was attempting to enforce the terms of the instrument of assignment, which is distinctly different than taking the position that the assignment could not have occurred and was thus void and transferred no interest (the former not being permissible while the latter is).

The opinion held that only the entity holding the beneficial interest under the DOT (which is either the original lender or the assignee or agent thereof) may instruct the trustee to commence and complete a nonjudicial foreclosure, and that by not permitting homeowners to challenge a void assignment that they would be deprived of the means to assert their legal protections and are thus permitted to challenge the foreclosing entity’s status as the “mortgagee”. The opinion relied heavily upon the Culhane decision from the U.S. Court of Appeals for the 1st Circuit (which has jurisdiction over appeals of Federal cases in the Northeastern US), which also permits borrower challenges to assignments. The task is now to get the rest of the courts in the US to understand and adopt the proper position which has been taken by appeals courts on both coasts, and to prove that MERS cannot be the agent or assignee of the Note for the lender where, as here, MERS purported to act for a bankrupt entity years after that entity ceased to exist.

The opinion did not take any position on whether a post- (securitization) trust closing transfer is a void assignment (thus leaving the issue open), and did not preclude the advancement of a claim to seek to preclude a nonjudicial foreclosure before it takes place. The opinion states very clearly that its holding was narrow, and is confined to permitting a homeowner to assert a cause of action for wrongful foreclosure after the sale has taken place based on a void assignment, as that was the point that a real injury had manifested and thus the homeowner has standing to seek redress for that injury.

The Court held that the fact questions surrounding the assignment were not before the Court. The effect of this is that the Court understood that there are questions of fact surrounding whether an assignment is void, and thus the opinion should be able to be used to successfully defeat Motions for Summary Judgment on the issue of whether an assignment is void.

The anti-Glaski pundits and those who took the position that Glaski was an “outlier” decision have now been silenced (the same thing which happened in Oregon when the homeowners’ victory against MERS in the Niday case in the Oregon Court of Appeals was similarly characterized, which stopped when the Supreme Court of Oregon unanimously approved the court of appeals’ decision). The “broad brush” courts which have taken the erroneous position that a borrower may never challenge an assignment under any circumstances have now been shown how they are wrong. The bank and servicer attorneys who had relied upon Jenkins, Gomes, and the other cases which gave rise to the the per se rule of no standing of a borrower to challenge an assignment are now on notice that this is NOT the law in California.

Many people across the US have been anxiously awaiting this opinion, which one of our California network counsel provided to us this morning. A copy of the full opinion is available upon e-mail request.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 17, 2015

A second Florida Circuit Court has dismissed a foreclosure case involving America’s Wholesale Lender, finding that AWL did not exist; did not assign the mortgage; was not a licensed mortgage lender in Florida in 2005 or thereafter; and did not have authority to do business in Florida under F.S. 607.1506.

The Judgment Granting Defendant’s Motion for Involuntary Dismissal based on these facts was entered on February 12, 2016 in the matter of U.S. Bank, National Association, as Trustee for the Holders of CSFB ARMT 2005-6A v. Dimant, Florida 19th Judicial Circuit (St. Lucie County) Case No. 2013-CA-001130.

The Court also found that the alleged Assignment of Mortgage by MERS was invalid because MERS had no authority to assign ownership of the mortgage as MERS was not the owner and was only a nominee of the non-existent AWL, and thus the assignment was without authority and therefore invalid.

Significantly, the Court also found that the “alleged undated blank endorsement” by Countrywide doing business as AWL “is a direct violation of Florida Statute 677.501(1)(a) which provides that the document must be first negotiated by the named person’s indorsement and delivery.” The Court further found that the Plaintiff (US Bank) provided no evidence that Countrywide ever received the loan documents to accomplish a legal transfer of the loan as required by F.S. 673.2011, and that no evidence was provided by the Plaintiff of the relationship between AWL and Countrywide or BOA.

The Court concluded that US Bank had no standing to bring the action and all failed to meet all conditions precedent to bringing the action. The Court also found that the homeowners were the prevailing parties and reserved jurisdiction to hear motions for attorneys’ fees and costs.

This case was decided on practically the identical facts of the Bank of America v. Nash decision previously published on this website. Thus, as of this week, two separate Florida Circuit Courts have now dismissed foreclosure actions involving the non-existent AWL as the alleged “lender”.

We thank one of our dedicated readers for bringing this important decision to our attention today. A copy of the Judgment is available upon e-mail request.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 12, 2016

Early this morning, a Santa Rosa County, Florida Circuit Court Judge granted the homeowners’ Emergency Motion for a stay of enforcement of a Writ of Possession (eviction) following the homeowners’ filing of a Sworn Motion to Vacate a Final Judgment of foreclosure due to fraud upon the court by Wells Fargo Bank, N.A. as the claimed “trustee” of a New Century securitization trust. The eviction was to take place later today.

The Sworn Motion was supported by a 34-page Affidavit of Marie McDonnell, the expert witness who was instrumental in the $5.4M jury verdict in Texas against Wells Fargo and the servicer where the jury found that Wells Fargo had engaged in fraud. The Florida case and the Texas case both involved New Century as the alleged “lender”, and in both cases Wells Fargo sought to foreclose.

Mr. Barnes represents the homeowners, prepared the Sworn Motion, and argued the Emergency Motion for stay this morning.

The McDonnell Affidavit was the product of five weeks of intensive research which revealed that New Century never owned or funded the loan, and concluded that Wells Fargo was aware of these and other facts but withheld these facts from the homeowners and the Court, thus having procured the Final Judgment through fraud. The investigation revealed that the homeowners’ loan was funded and owned by UBS Real Estate Securities, Inc. which Ms. McDonnell discovered after conducting an intensive investigation into the New Century bankruptcy where UBS had filed an adversary proceeding against New Century and where there were repurchase agreements in place. The investigation revealed that at all times, UBS Real Estate Securities both funded and owned the homeowners’ loan, and that New Century never lent any money to the homeowners despite claiming to do so in the Note and Mortgage.

Throughout the 4-year state court foreclosure case, Wells Fargo had consistently taken the position that it owned the loan by virtue of it being transferred to Wells Fargo from New Century. This position has been proven to be false from the beginning. Wells Fargo had also taken the position that it had the original Note, when in fact documents discovered by Ms. McDonnell showed that Deutsche Bank was the custodian of the loan documents and there was no evidence of any relinquishment of the documents from Deutsche Bank to Wells Fargo.

Ms. McDonnell did a side-by-side comparison of the facts in the Texas case and the Florida case, and found the fraud in the Florida case, which involved a private securitization, to be even more egregious than the fraud found in the Texas case where the jury awarded the homeowners $5.4M which was assessed against Wells Fargo and the servicer.

A specially set 2-hour hearing is being scheduled on the merits of the Sworn Motion to Vacate the Final Judgment, which attaches a copy of the homeowners’ separately filed Federal rescission action which was also prepared by Mr. Barnes.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 11, 2016

Jeff Barnes, Esq. has been retained to file and has filed TILA rescission actions in the Federal courts of Florida, Colorado, and Tennessee. As those of you who follow this website are aware, Mr. Barnes has successfully staved off an eviction in Colorado by asserting a Jesinoski rescission defense, as has FDN’s local counsel in Tennessee based on the filing of a rescission Complaint prepared by Mr. Barnes. Other such actions are presently being prepared for filing in Hawaii and Arizona.

Mr. Barnes has also been retained to file Loan Enforcement Determination (LED) actions in various states, demonstrating the evolution of mortgage lending cases from strict foreclosure defense to offensive claims. Mr. Barnes has also recently filed an action for rescission and various fraud-based claims against Wells Fargo Bank in Federal court in Florida pursuant to Jesinoski and Florida law which is supported by the detailed findings of fraud made by Marie McDonnell, the expert witness who was instrumental in the recent $5.4M jury verdict against Wells Fargo in Texas which case bears striking similarities (including the same alleged “original” lender, that being the long-bankrupt New Century Mortgage) to the Texas case.

Mr. Barnes is also currently in a trial in Oregon involving whether America’s Wholesale Lender (which a Florida Judge found, after a full trial and pursuant to sworn testimony of a witness from Bank of America not to have existed), ever transferred any interest in either the Note or the Deed of Trust to the Bank of New York as the claimed “trustee” of a securitization trust. A separate rescission action based on the non-existence of AWL (and thus no legal loan having ever being “consummated” with the non-existent alleged “lender”) is also being filed shortly in Federal Court in Colorado by Mr. Barnes’ Firm.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com