January 28, 2016
A Washington Court has entered an Order today which awarded a homeowner over $213,000.00 in damages against Cenlar, a loan servicer, which included damages for emotional distress arising out of Cenlar’s wrongful imposition of charges including attorneys’ fees. A copy of the full opinion, which was sent to us by our network counsel in Washington this afternoon, is available upon e-mail request to us.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
January 28, 2016
FDN network counsel John Higgins, Esq., assisted by Jeff Barnes, Esq., have stopped post-foreclosure proceedings in Tennessee with the filing of a separate Federal action seeking rescission under the United States Supreme Court’s Jesinoski decision, which held that a rescission is effective upon mailing. The foreclosing party failed to undertake any action to seek to challenge the homeowners’ statutory right to elect rescission within the timeframe provided by the TILA statutory scheme (and in fact made no challenge at all).
The foreclosing party is Bank of NY as the claimed “trustee” of a Countrywide securitization. The home had been sold to third parties, who were named as co-Defendants in the homeowners’ rescission action which also seeks Declaratory Relief, as such an action requires joinder of any party who may have an interest in the outcome of the action or whose interests may be affected by any Final Judgment entered in the action.
Mr. Barnes prepared the rescission Complaint, which was filed by Mr. Higgins, who also sought a stay of the state court foreclosure proceedings. Despite vicious anger and screaming by counsel for BNY and the third parties and their insistence on an unreasonable bond, the Tennessee state court Judge found that a stay was appropriate without the imposition of a significant bond.
Mr. Barnes presently has several Jesinoski/rescission cases pending across the US, including cases filed in Colorado, Florida, Georgia, and now Tennessee (with Mr. Higgins). Additional actions are being prepared for filing in Wyoming and a second case in Colorado. As this website has published, Mr. Barnes was successful in staving off an eviction in Colorado as a result of the assertion of a rescission defense, which is now the subject of a pending Federal action in Colorado.
Courts in Hawaii and Oregon have recognized the principles of Jesinoski over objection of “bank” attorneys. “Bank” and servicer attorneys continue to refuse to acknowledge the mandatory effects of a statutorily-authorized right of rescission despite the Supreme Court’s Jesinoski decision. Further, the issue of what constitutes “consummation” of a loan remains unresolved, and is a question of state law and does not ipso facto mean the date the loan papers were signed especially where the loan was “table funded” and the true lender was not disclosed. It is only recently that homeowners are starting to discover that their alleged “lender” was not a lender at all, and was in fact borrowing off of commercial warehouse lines and converting the alleged “residential” mortgage loan into a commercial investment transaction without any disclosure to the borrower.
As one expert witness has termed it, the process was “cows in, hamburger out”, meaning that it is impossible to determine who the true “lender” was.
As those of you who follow news in the area of foreclosure law know, there was a recent jury verdict in Texas entered against Wells Fargo for $5.4 million in favor of the homeowners based on findings of fraud and misrepresentation by Wells Fargo and Carrington Mortgage Servicing. The Texas attorneys for the homeowners obtained this verdict through an expert witness who has over 25 years of experience in the mortgage industry and who serves as an expert witness across the United States.
Mr. Barnes’ Firm has teamed up with the homeowners’ expert witness in the Texas case, whose testimony was instrumental in the resulting multi-million dollar jury verdict. The fraud which was engaged in by the “banksters” and perpetrated upon tens of millions of homeowners that is now coming to light through the work of this expert and others is beyond comprehension, and will be exposed in lawsuits which have been filed and which will be filed.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
January 6, 2016
Yesterday, a Colorado Federal Judge upheld a claim for Federal civil rights violations filed by two homeowners against two Douglas County, Colorado Sheriff’s deputies and their supervisor. Jeff Barnes, Esq. represents the homeowners, and appeared in Federal Court in Denver yesterday to argue against a Motion to Dismiss which had been filed by the Defendants.
The Verified Amended Complaint, which was prepared by Mr. Barnes after taking over the case from the homeowners who had been representing themselves pro se, alleges that the homeowners, who were the subject of an eviction, had hired professional movers to remove their valuables and possessions from their home, and that while the movers were engaged in their work, the deputies and a van full of children showed up at the home at which time the deputies directed the professional movers to cease all work and directed the children to go into the home and throw all of the homeowners’ possessions, which included medications and valuables and personal items, into black plastic trash bags and to remove the furniture and throw it out of the home. In doing so, the homeowners’ expensive furniture and possessions were broken and damaged, in certain instances, ruined. The homeowners claim violations of their 4th amendment right to not be subject to an unreasonable seizure of their property, and that the actions of the Defendants resulted in a deprivation of this Constitutional right and thus violation of their civil rights pursuant to Section 1983 of the Federal civil rights laws.
Before filing the Verified Amended Complaint, Mr. Barnes took sworn statements of two of the professional movers who were on the scene while the wrongful conduct took place. Their testimony was consistent with that of the homeowners in the Verified Amended Complaint as to the actions of the deputies, including the deputies’ use and direction of the swarm of children who damaged, destroyed, and ruined the homeowners’ possessions, valuables, and furniture.
The Motion to Dismiss filed by the Defendants claimed, alternatively, that the action should be dismissed because the law enforcement defendants were entitled to either absolute immunity, quasi-judicial immunity, and/or qualified immunity. The Federal Judge rejected all such claims in denying the Motion to dismiss, stating during the hearing that although the homeowners were the subject of an eviction that they did not give up their 4th amendment rights in their personal property. The case is one of first impression on the facts and the law.
Counsel for the Defendants argued that the deputies were “executing a lawful order”, and thus could not be sued. However, the issue was not whether a lawful order was being executed, but whether the manner of execution of the order was lawful.
At the end of the hearing, the Judge (who is the Federal Judge who tried the Oklahoma City bombing case and sentenced Timothy McVeigh) stated that “This case will go forward”.
Mr. Barnes has now established (at least in Colorado as of yesterday) that a homeowner may, under the proper circumstances, advance a claim for civil rights violations under Section 1983 of the Federal civil rights laws for deprivation of 4th amendment rights against law enforcement officials who act improperly during the course of an eviction.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
December 21, 2015
The Florida Second District Court of Appeal has entered an Order granting the homeowner’s motion for appellate attorneys’ fees in a case where Deutsche Bank National Trust Company as the claimed trustee of a securitized mortgage loan trust conceded error on the part of the trial court in entering a Final Judgment of Foreclosure on the issue of lack of evidence of standing. The homeowner is represented by Jeff Barnes, Esq., who tried the case and filed the appeal including the homeowner’s Initial Brief.
Deutsche Bank requested several extensions of time to file its Answer Brief and also, during this time, repeatedly requested the homeowner to enter into a loan modification. Deutsche Bank never filed an Answer Brief, and instead ultimately filed a Confession of Error, admitting that the trial court erred in entering Final Judgment for Deutsche Bank.
The Final Judgment was thus vacated, and the appeals court has ruled that the homeowner is entitled to her appellate attorneys’ fees (as the homeowner was the “prevailing party” in the appeal.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
December 18, 2015
A Pinellas County (Clearwater) Florida Circuit Judge today vacated a foreclosure sale on Motion on the borrower and her newly retained counsel Jeff Barnes, Esq., who is assisted by paralegal John Krondes of Connecticut. The borrower filed an objection to the sale prior to retaining Mr. Barnes and Mr. Krondes. The matter was set for hearing today.Mr. Barnes filed a Motion for Evidentiary Hearing as the law in Florida is that an objection to sale must be the subject of an evidentiary hearing, and may not be decided solely on affidavits or argument of counsel.
The Florida 4th District Court of appeal earlier this year reversed a Circuit Judge’s approval of a sale in another case where the borrower filed an Objection to the sale and where the Judge in that case permitted the sale to proceed without an evidentiary hearing on the borrower’s objection to the sale.
The borrower has retained two (2) expert witnesses and will be filing a Motion to Vacate the Final Judgment being prepared by Mr. Barnes and Mr. Krondes based on recent Florida case law.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
December 14, 2015
Last week was busy. On Friday, December 11, 2015, the Supreme Court of Tennessee issued its decision in MERS v. Ditto, where in a 33-page opinion the Court held that MERS is not the beneficiary under a Deed of Trust; that MERS acquires no property interest by virtue of any claim in the DOT; and that MERS has no constitutionally protected property interest. The opinion cited to many cases, including the Pilgeram decision from the Supreme Court of Montana where Jeff Barnes, Esq. had prevailed on the MERS issues including that MERS is not the beneficiary under a DOT under Montana law.
Also on December 11, a Hillsborough County, Florida Judge denied a Motion to Strike Affirmative Defenses filed by a 4th-downline alleged “Assignee” in a case originally filed by JPMorgan Chase arising out of a WaMu-originated loan which JPM had claimed was inherited by it as a result of the Purchase & Assumption Agreement with the FDIC after WaMu failed. The homeowner, who is represented by Jeff Barnes, Esq., raised 16 affirmative defenses including the lack of any evidence of transfer or sale of the loan from the FDIC to JPM pursuant to the sworn deposition testimony of former WaMu and JPM mortgage management employee Lawrence Nardi and JPM’s filing in a Federal action where it admitted to the court that it was “not the successor in interest” to WaMu.
The loan in the Florida case was subsequently sold 3 times in less than 2 years to various “LLC” entities. The homeowner was permitted to amend his Answer and affirmative defenses with each new sale. The Court struck only 2 of the 16 defenses based on the fact that those 2 defenses incorporated the prior 14 defenses, which the Court let stand.
In South Carolina, a Dorchester County Judge has also permitted further amendment of a homeowner’s counterclaim and cross-claim in a case where the loan has been sold seven (7) times. The Judge also ordered discovery to be produced by the Plaintiff (U.S. Bank as trustee of a securitization trust, which is also a defendant in the homeowner’s counterclaim for declaratory relief seeking an adjudication that the Plaintiff has no enforceable interest). The homeowner is represented by Jeff Barnes, Esq. together with local South Carolina counsel Bill Sloan, Esq.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
December 5, 2015
In what we consider to be a major victory in a case of first impression in Colorado, an Archuleta County Judge stopped an eviction trial from proceeding after motions, briefing, and lengthy argument yesterday. Jeff Barnes, Esq. represents the homeowners, who are battling both US Bank and Citimortgage in connection with the threatened eviction.
Colorado law permits the assertion of defenses in an eviction action, but the case law does not limit or specify what defenses can be raised. The homeowners raised defenses related to a post-sale change of ownership in the loan (and thus a “person entitled to enforce” [PETE] issue), and other defenses including a defense based on a TILA rescission effected pursuant to 15 USC sec. 1635 and 1640. Neither the “lender” nor the servicer undertook any action within the 20 day period permitted by the Federal statute to challenge the homeowners’ exercise of their right to rescind, electing instead to wait until yesterday’s hearing to attempt to argue a “defense” to the rescission.
The Court ultimately ruled that it is without jurisdiction to entertain the defenses raised, and issued an abatement order staying the eviction case until the District Court decides the issues related to the defenses. This means that no eviction trial can be scheduled until the District Court litigation on the defenses (which is an entirely new action to be filed) has run its course, which would include any appeals.
Further, if the homeowners prevail on their rescission claim, the entire eviction action could conceivably disappear forever. The law on rescission, after the issuance of the Supreme Court’s Jesinoski decision in January of this year, is far from settled, and more issues have opened up in view of this decision which clarified, among other things, that a rescission is effective upon the mailing of the notice of rescission. The principles of the Jesinoski decision were recently affirmed in the Pataalo decision out of Oregon (which was brought to our attention by several of our dedicated followers), much to the chagrin and frustration of JPMorgan Chase (the foreclosing party in that case).
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
November 20, 2015
In view of overwhelming demand and continuing requests, Mr. Barnes will shortly be releasing his first foreclosure e-book which will be made available to anyone. As those of you who follow this website know, Mr. Barnes has a Masters’ Degree in education and was previously a teacher before becoming an attorney, and has been involved in foreclosure defense cases in over 35 states since essentially confining his law practice to the defense of foreclosures beginning in mid-2008.
The e-book will be a primer which will introduce the reader to a variety of foreclosure issues and cover multiple topics relating to foreclosure, including explaining the procedural and substantive differences between judicial and non-judicial foreclosure; MERS issues; an introduction to how securitization works and issues in securitization cases; discovery; and more. A monthly update service will also be made available which will provide information as to trends in the law, current issues in foreclosure litigation, and new developments on specific foreclosure-related matters.
At this time, the anticipated release date for the e-book is late December, 2015 (in approximately 6 weeks). Further details will be provided shortly, and a separate link will be added to this website related to the e-book and the monthly update subscription service.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
(Mr. Barnes has been “on the road” for the past weeks traveling to hearings in different states)
November 19, 2015
A Pinellas County, Florida Circuit Judge vacated a Final Default Judgment against a homeowner who resides in Israel who never resided in the Florida property upon which Wells Fargo foreclosed upon. The loan file reflected that Wells Fargo knew that the homeowner resided in Israel and actually had his address in Israel, yet directed its process server (per statements on the process server’s Service Affidavit) not to attempt service in Israel. Service was allegedly made by “publication”.
The Final Default Judgment was thus vacated and set aside, as the obvious attempt of Wells Fargo was to avoid compliance with Florida’s service of process statutes and circumvent the required service with “publication”. Jeff Barnes, Esq. represents the homeowner.
In Connecticut, a foreclosure action was dismissed based on a lack of standing and lack of any proof of any proper transfer of the loan to the foreclosing Plaintiff, which was proven by a loan investigation report of the homeowner’s expert witness Richard Kahn. Mr. Kahn was formerly upper management with Merrill Lynch’s mortgage-backed securitization division on Wall Street, and has also assisted Mr. Barnes in securing a victory at trial and successfully opposing summary judgment motions in other cases.
The homeowner was represented by the Scalzi law offices in Connecticut, with substantial assistance from John Krondes who is a paralegal with that Firm who also assists W. J. Barnes, P.A. in that capacity with other cases.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
October 29, 2015
W. J. Barnes, P.A. is pleased to announce the opening of its new branch office in Denver, Colorado in connection with the Firm’s affiliation with Atlas Law Firm, P.C. of Denver. Mr. Barnes will be working with Edward Levy, Esq. of Atlas per our prior post below.
The Denver office is located in Suite 575 of the Ptarmigan Building, 3773 Cherry Creek North Drive, Denver, Colorado 80209. Meetings in that office will be by appointment only, and may be scheduled with Tiffany Goldwater (of W. J. Barnes, P.A.) by e-mailing [email protected].
W.J. Barnes, P.A. and Atlas Law Firm, P.C. will shortly be publishing a directory of services which will include foreclosure defense, bankruptcy (Chapters 7, 11, and 13), defense of Stay Relief Motions and Proofs of Claim in Bankruptcy proceedings, FED/UD defense, appeals (state and Federal court), and loan enforcement dispute actions. Expert witness services will also be made available through Richard Kahn, who was formerly the national product manager for Merrill Lynch’s mortgage-backed securities division on Wall Street who has over twenty years of experience in securitization and who has been qualified as an expert witness in numerous states across the country.
Recently, Mr. Barnes has been requested by homeowners across several states who are current and not in default on their loans to file pre-emptive actions to determine whether a claimed lender or servicer has the right to seek payment on a mortgage loan which was not originated in the name of the servicer or their principal. Most of these cases involve securitization of the loan or SBM (alleged “successor by merger”) situations (such as the claim of JPM that it is the alleged “successor in interest” to the defunct WaMu or BOA is the alleged “purchaser” of a Countrywide originated loan).
These Loan Enforcement Determination actions are becoming ripe due to recent decisions of appellate courts, particularly in Florida, that mere possession of a Note with an undated blank endorsement does not prove standing (resulting in many reversals of foreclosure judgments and the entry of judgment in favor of the homeowner), and in view of the increasing questionable nature of alleged “original” Notes which were previously claimed to be lost or which did not have an endorsement stamp appear until well into the foreclosure litigation.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com