October 22, 2015

In recent months, we have been advised by homeowners in different states that certain Judges in those states have taken the position that decisions by either the Supreme Court of that state or decisions of the United States Supreme Court are not binding on them. Taking such a position violates the Judge’s duties as an officer of the Court, erodes confidence in the judiciary, and renders the public more suspicious of the court system than it already is.

A Judge is duty-bound to follow the “law of the land” whether they agree with it or not. A Judge cannot impose his or her own personal views as to whether the state or US Supreme Court made the correct decision on an issue: when a state Supreme Court or the US Supreme Court decides a specific legal issue, the law is established and Judges must follow it. State supreme courts (other than as so denominated in New York, as the “Supreme Court” is a lower level court in NY) and the US Supreme Court are the highest appellate courts, and their decisions establish “the law of the land”: a state Supreme Court decision establishes the law for that State, while the US Supreme Court establishes the law for the country.

In our experience, the overwhelming majority of Judges are fair, honest, considerate of the position of both sides, and take the law into account when rendering their decisions. The examples below are isolated, but the fact that two such examples have been recently brought to our attention is disturbing.

One of the cases which we were advised of concerned the use of Mr. Barnes’ successful appeal of the MERS issues in the Supreme Court of Montana, which by its decision established that MERS was not the “beneficiary” of a Deed of Trust despite claiming to be so. Although this decision was issued two years ago, the homeowner advised that when that decision was presented to a local Montana county Judge, the Judge took the position that he was not bound by the Supreme Court of Montana’s decision.

Another homeowner advised us that in a prior foreclosure-related hearing before a state court Judge that the Judge told the homeowner that he was not bound by decisions of the United States Supreme Court.

This contempt and disrespect for state Supreme Courts and the US Supreme Court is beyond disconcerting.  There is no reason why homeowners facing foreclosure should be treated adversely when a decision of a state or the US Supreme Court is in favor of them and presented to the Judge. “And Justice for All” means just that: it does not mean “except no justice for homeowners in foreclosure.”

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 20, 2015

We are pleased to announce the network’s affiliation with mortgage securitization expert Richard Kahn. Mr. Kahn spent years on Wall Street as management with Merrill Lynch in their mortgage securitization division, reporting directly to (former Treasury secretary) Donald Regan. Mr. Kahn has been qualified as an expert in numerous states across the U.S. His company, FPG USA, offers initial loan assessments as well as full-blown mortgage loan reports.Mr. Kahn has been instrumental in assisting W. J. Barnes, P.A. with the defense of foreclosures involving securitizations, SBMs (successors by merger), and cases involving defunct and bankrupt original lenders across the U.S.

The network has also established an affiliation with Denver, Colorado bankruptcy attorney Edward Levy, Esq. Prior to opening his own law practice, Mr. Levy spent over 15 years as a certified public accountant with a national CPA firm, and was also a Chief Financial Officer and corporate controller in private industry. Mr. Levy currently provides bankruptcy services to homeowners facing foreclosure, including filings under both Chapter 7 and Chapter 13 of the Bankruptcy Code.

W.J. Barnes, P.A. and Mr. Levy’s law Firm are currently in the process of reviewing a number of locations for office space which will be shared by both Firms. In view of an increase in Mr. Barnes’ Colorado practice, his plans are to spend several days each month in what will be the Denver office.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 19, 2015

Once again, the Florida Fourth District Court of Appeal has reiterated what is now established law in the State of Florida on “blank endorsements”: no proof of when the stamp was placed on the Note results in reversal of any final judgment in favor of the foreclosing party (and thus no foreclosure), and final judgment in favor of the homeowner. The most recent pronouncement of this maxim is set forth in Peoples v. SAMI II Trust, etc., Florida 4th DCA case No. 4D14-2757 (Fla. 4th DCA, Oct. 14, 2015).

The foreclosing party filed an Amended Complaint with a copy of the Note (in favor of America’s Wholesale Lender) with no endorsement, after which it filed an “original” Note with a stamp. There was no testimony at trial as to when the stamp (allegedly executed by Countrywide) was placed on the Note.  The final judgment which the trial Judge entered in favor of the foreclosing party (a BNY securitization) was reversed with directions to enter final judgment in favor of the homeowner.

Despite the issuance of this case, which is only the latest in a long line of appellate decisions in Florida, the foreclosure firms continue to argue that all they need to prove standing is “the original note with a blank endorsement”, period. Perhaps they are hoping that the Courts are not reading the law, as they apparently are not or they have and are just not being candid with the Court as to what the current state of the law really is.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 13, 2015

Mr. Barnes mourns the recent loss of Robert “Bob” Smart, a longtime client of the Barnes law Firm who was killed in an automobile accident in Colorado last Friday. Bob was a kind and gentle soul and was a friend who will be sorely missed. Be at peace, Bob.

Jeff Barnes, Esq.

We are in the process of a major update to the website, making it mobile friendly and modernizing the theme.  This caused the site to be down for a period of a few days and we apologize for this, however we are over the hump and rounding the corner to completion.

You may see some style changes over the next few days as we complete the work and finish our upgrades.  Thank you for your patience and your dedicated viewership.

September 18, 2015

Yesterday, a case was brought to our attention which was issued in 2004 but which applies to current litigation. A Federal appeals court upheld awards of compensatory damages, attorneys’ fees, and a $6 million dollar punitive damage award against EMC Mortgage Corporation arising out of its actions in breaking into the homeowners’ residence without their consent and posting a sign in the window that the property was “secured” and not for sale or rent. This conduct occurred during foreclosure litigation, and at the time, EMC did not have any title to the property or judgment or any other rights of possession.

EMC also, with knowledge that the homeowners were represented by counsel, repeatedly directly contacted the homeowners, who then moved to amend their complaint to include claims alleging intentional wrongful actions against EMC and seeking punitive damages for violations of the Fair Debt Collection Practices Act (FDCPA).

Even though the homeowners were living in an apartment when the wrongful conduct occurred, the arbitrator found that EMC’s conduct was “reprehensible and outrageous and in total disregard” of the homeowners’ legal rights, and awarded $6 million in punitive damages against EMC for violations of the FDCPA, 15 USC sec. 1692. The United States Court of Appeals for the 8th Circuit affirmed all awards. Stark v. Sandberg and EMC et al., 381 F.3d 793 (8th Cir. 2004).

Mr. Barnes has applied this holding to a current case in North Florida where the foreclosing party not only broke into the homeowner’s property and changed the locks, but also stole certain items and destroyed others. A Motion to amend the Answer to add additional affirmative defenses and a Counterclaim for damages including punitive damages has been filed today.

We have been advised by homeowners that “banks” and servicers have wrongfully entered property (which is in the midst of foreclosure litigation or a challenge to the foreclosure) under the guise of “securing” it when the “bank” or servicer has no rights of possession to the property. The Stark opinion provides that significant damage claims can be asserted against those “banks” and servicers for this type of conduct.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 16, 2015

Two homeowners have filed a Federal Civil Rights action against three officers of a Colorado Sheriff’s Office, the Federal National Mortgage Association, and attorney Lawrence Castle for damages arising out of a horrific eviction where the Sheriff’s office utilized over a dozen children to essentially rape the homeowners’ home and destroy their possessions and furniture. Attorney Lawrence Castle instituted the eviction. As those of you who follow news in the foreclosure arena know, Castle closed his foreclosure mill after being sued by not only his clients by the Colorado Attorney General for committing a massive multi-million dollar fraud upon his Firm’s clients (see Denver Post, July 15, 2014 “AG sues Colorado’s largest foreclosure law firms alleging massive fraud”).

The action also alleges that a representative of FNMA assisted in the effort to not only permit the destruction, but also to interfere with the work of the professional movers who were hired by the homeowners. The movers were and had been in the process of removing possessions from the home when the Sheriff’s office defendants on the scene directed the movers to cease their work and instructed the swarm of children to go into the home with black plastic garbage bags and throw all of the homeowners’ possessions into the bags.

The professional movers requested the on-scene law enforcement defendants to permit them to remove the heavy furniture and appliances. The law enforcement defendants refused to do so, and instructed the children to remove the furniture and appliances, which they destroyed in the process. The homeowners were told the following day that the children were routinely used for evictions and were paid with a bag of cash.

Jeff Barnes, Esq. represents the homeowners. A copy of the Verified Amended Complaint is available upon e-mail request.

The Verified Amended Complaint was finalized the day before Mr. Barnes was advised of a press release relating to the feature film 99 Homes, which opens in theaters on September 25. The film details the horrors of the eviction process, and the director credits Lynn Szymoniak as a “major force in my research” in addition to the fact that the massive fraudulent paperwork perpetrated the banks in foreclosures “is still happening now.”

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 21, 2015

This time of year is generally slow in foreclosure litigation as many of the Judges and attorneys are on vacation. However, the Florida appellate courts have been issuing opinions reversing foreclosure judgments on almost a weekly basis.

For years, mere possession of an alleged note with a “blank endorsement” (which we call a “stamp”) was enough to carry the day to prove standing without any evidence of authority or authentication of the stamp and despite homeowner defenses challenging the alleged “endorsement”. In many jurisdictions, it still is.

However, the Florida appellate courts have taken the lead in delving into the real issues surrounding the alleged “endorsements”, none of which are ever dated. In the recent opinion of Kelly v. Bank of New York as Trustee for CWALT, Inc. ALT 2007-25, Florida 1st District Court of Appeal Case No. 1D13-2778 (opinion issued July 14, 2015), the Court reversed the final judgment of foreclosure finding that BNY had failed to prove standing on multiple grounds, and despite testimony from the representative of a prior servicer that the “collateral file” was sent to foreclosure counsel prior to the filing of the Complaint.

The Court held that where the plaintiff files the original note after filing suit, an undated blank endorsement on the note is insufficient to prove standing at the time the initial complaint was filed, citing to Tilus v. AS Michai LLC, 161 So.3d 1284 at 1286 (Fla. 4th DCA 2015). The Court further held that when a plaintiff asserts standing based on an undated endorsement, it must show that the endorsement occurred before the filing of the complaint through additional evidence, citing to Lloyd v. Bank of NY Mellon, 160 So.3d 513 at 515 (Fla. 4th DCA 2015).

The Court found that the only “additional evidence” was the testimony from a mortgage resolution associate for a prior servicer who did not testify as to when the endorsement occurred. The fact that the testimony established only that the original plaintiff was in possession of the note at the time the complaint was filed was not enough to establish standing in the absence of evidence as to when the endorsement occurred.

We have found that in addition to these stamps not being dated, there are often situations where (a) the stamp is not even on the signature page of the note but was placed on the back of one of the pages; (b) the alleged signor of the stamp was not an employee of the entity whose name appears with the stamp; (c) that the signature on the stamp is one of many variations of the signature of the signer; and (d) that there are multiple versions of the note, both with and without stamps and filed at different stages of the litigation.

Just two days ago, the Florida 4th District Court of Appeal issued its opinion in Perez v. Deutsche Bank National Trust Company, etc., Case No. 4D13-4812, which reversed another final judgment of foreclosure involving Ocwen where the representative testified that the note was provided to Deutsche Bank at the time that the securitization trust was created in connection with the PSA. However, the representative did not know when Ocwen requested the note.

The Court held that Deutsche Bank failed to establish standing because no evidence was introduced showing that the note was transferred to Deutsche Bank prior to the inception of the lawsuit. Like prior cases, the “endorsement” was undated. The representative was unable to testify when the note was endorsed, and the PSA was not introduced into evidence. The Court also held that even if the PSA had been introduced into evidence, this would be insufficient to establish standing as there was no evidence that the indorsee had the intent to transfer any interest to the trustee, citing to Balch v. LaSalle Bank, N.A., 2015 WL 641534 (Fla. 4th DCA, Aug. 5, 2015).

The Perez Court also cited to Jarvis v. Deutsche Bank, 40 Fla. L. Weekly D1416 (Fla. 4th DCA, June 17, 2015) which held that evidence that the note was physically transferred into a trust prior to Deutsche Bank filing its complaint does not, by itself, establish standing.

These decisions finally deal with the real issues as to what proof of standing is all about, and dispel the myth that mere possession of a note with a blank and undated stamp is enough to take away someone’s home. Bravo and kudos to the Florida appellate courts. The rest of the courts in this country should take notice and hold foreclosing parties to their evidentiary burdens.

We thank several of our dedicated followers for bringing these important appellate decisions to our attention.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

July 27, 2015

Last Friday, July 24, a Franklin (Williamson County), Tennessee Circuit Judge ruled against BNY, denying its Motion to Dismiss and staying a foreclosure. Per our prior post, last Monday, July 20, a Circuit Judge in Dandridge (Jefferson County), Tennessee also ruled against BNY denying its motion to dissolve a restraining order precluding any sale of the property during the course of the homeowners’ challenge to the foreclosure. The homeowners in that case are represented by Jeff Barnes, Esq. and local TN counsel Andrew Farmer, Esq.

The Franklin case involves MERS and BNY as the alleged trustee of a Countrywide securitization where two separate trusts are claiming ownership of the loan (a CWMBS and a CWALT). Jeff Barnes, Esq. represents the homeowners together with local TN counsel John Higgins, Esq. Mr. Barnes and drafted the opposition to BNY’s Motion to Dismiss, and the Judge issued his ruling in open court without any oral argument, although counsel for BNY repeatedly challenged the Judge’s oral pronouncement that he was denying BNY’s motion.

The MERS issues are currently on appeal in Tennessee following the Ditto decision which, like many other appellate courts throughout the US, held that MERS has no independent interest in real property and no protected interest in real property by being named beneficiary or nominee, and cited case law that MERS is contractually prohibited  from exercising any rights with respect to mortgages including foreclosure.

The rulings on Monday and Friday of last week, in both eastern and middle Tennessee, demonstrate that Tennessee courts are no longer blindly accepting the “we have the Note, therefore we win” position consistently taken by the “banks” and servicers.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

July 21, 2015

Yesterday, a Dandridge (Jefferson County), Tennessee Circuit Court Judge declined, for the second time in 30 months, to dissolve a restraining Order precluding any nonjudicial sale and also declined to require the homeowners to post a bond as a condition of precluding any sale in a Bank of NY securitization case involving America’s Wholesale Lender (AWL) as the alleged original lender. The Judge’s ruling reiterates the Court’s previous denial of the same request made by BNY back in 2012.

Jeff Barnes, Esq. represents the homeowners together with local TN counsel Andrew Farmer, Esq. Mr. Barnes wrote the responsive brief and argued the matter yesterday in the Jefferson County courthouse in Dandridge, TN.

The homeowners originally filed suit in 2010 challenging BNY’s alleged right to seek a non-judicial foreclosure. The Circuit Court Judge entered a restraining order on Motion of the homeowners prepared and filed by Mr. Barnes. No bond was required as Rule 65.05(1) of the Tennessee Rules of Civil Procedure provides that a bond is for the payment of costs and damages which the party being enjoined may be shown to have suffered while being enjoined. The intent of the Rule is that there has to be evidence of such damages, which go in part into the future. BNY presented no such evidence, and the homeowners are challenging BNY’s standing to seek any relief at all.

BNY had also previously filed a Motion to Dismiss the homeowners’ Complaint, which Motion was denied. BNY had also moved to stay discovery, which was also denied.

In the 30 months since the entry of the original restraining Order, BNY did nothing to appeal or otherwise challenge the Order, and presented no evidence of any alleged damages being suffered while being enjoined from selling the property during the pendency of the litigation. The Judge stated “the Defendant [BNY] is no worse off than it was back in 2012”.

The homeowners are not only challenging BNY’s lack of standing to seek any relief due to no evidence of a lawful transfer to the securitization trust, but also that the loan may have been paid down or paid off from insurances, credit default swaps, and the like. They are also challenging any alleged right to enforce the loan in view of the Nash decision from Florida which found that AWL never existed and the loan was thus void resulting in no valid obligation to enforce. The Judge stated that “these are legitimate questions”.

In the end, the Judge stated that he had not been presented with any evidence by which he could calculate a bond, especially as the question of who owns the loan remains unanswered, and thus continued the imposition of the restraining Order without the requirement of a bond.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com