April 24, 2013

For the fourth time, the Iowa District Court for Greene County has denied summary judgment sought by the foreclosing party, which was originally Wells Fargo but is more recently US Bank as Trustee of a securitized mortgage loan trust. This is a case we have reported on several times previously in connection with the Iowa Court’s prior three (3) denials of summary judgment. Jeff Barnes, Esq. represents the homeowner together with local Iowa counsel Christine Sand, Esq.

The case was originally filed by Wells Fargo, which dismissed without prejudice after being denied summary judgment three times. US Bank as Trustee re-filed the action, which involves a Lehman Brothers loan and a 2004 SASCO trust. The Court found that Wells Fargo had essentially lied under oath about being the “holder” of the Note (which it stated it was in an Affidavit filed in support of one of the prior motions for summary judgment), as Wells Fargo later admitted that the Note had been lost and never found. The Court rescinded one of the prior summary judgments on that basis.

The fourth Motion for Summary Judgment was denied by Ruling dated today, which states that the Court finds that there does exist a fact issue concerning the proper person to recover under the terms of the promissory note and the foreclosure of the accompanying mortgage. The original Note has not been produced to date, and none of the Affidavits filed by the Plaintiff address the relevant facts.

Separately, the Florida 5th District Court of Appeal has reversed a summary judgment in favor of JPMorgan Chase Bank in the matter of Green v. JPMorgan Chase Bank, N.A., Case No. 5D12-870 (opinion filed April 5, 2013). Green’s original loan was with WaMu. Chase moved for summary judgment, claiming that it had the right to enforce the Note and Mortgage through the Purchase and Assumption Agreement (P&AA) [with the FDIC] and thus JPM had standing. The Court found that the indorsement in blank on the Note did not establish that JPM had the right to enforce the Note when it filed suit as the indorsement was undated, and that the P&AA was not authenticated for purposes of summary judgment.

As we have previously reported, there is no Mortgage Loan Schedule to the P&AA per the sworn deposition testimony of former WaMu and JPM employee Lawrence Nardi (who is no longer with JPM and is now in senior management at Bank of America), and JPM has admitted, in a Motion for Summary Judgment filed in the Deutsche Bank v. FDIC and JPM litigation in the United States District Court for the District of Columbia, that is is “not the successor in interest to WaMu” per the P&AA.

We thank one of our dedicated followers for bringing the Green decision to us.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 22, 2013

If this does not spark outrage among the public, nothing will. The information below was provided to us from one of our dedicated followers.

For months, United States Representative Elijah Cummings (D, MD) and Massachusetts Senator Elizabeth Warren have been requesting information from the Fed and the OCC about what took place in the “Independant Foreclosure Review” process. Of the 14 information requests which were made, only one question was answered in full. After a meeting between Cummings, Warren, and the Fed and OCC staff, a 9-page, single-spaced letter was sent to Ben Bernanke (Chairman of the Fed) and Thomas Curry (OCC) by Representative Cummings and Senator Warren which described what transpired. Pertinent sections of the letter:

“Two years ago, your offices (the Fed and OCC) issued a public report announcing that you determined that 14 mortgage servicing companies were engaging in ‘violations of applicable federal and state law’. You found that these abuses have ‘widespread consequences for the national housing market and borrowers’. We have requested information about the process used to conduct this review and the extent to which violations of law were found. At the meeting yesterday, Federal Reserve staff argued that the documents relating to widespread legal violations are the ‘trade secrets’ of mortgage servicing companies. In addition, staff from the Office of Comptroller of the Currency argued that these documents should be withheld from Members of Congress because producing them could be interpreted as a waiver of their authority to prevent disclosure to the public of confidential supervisory bank examination information…. Breaking the law is not a corporate trade secret. As regulators, you identified systematic and widespread abuses two years ago, and concealing important information about these violations limits our ability to fulfill our responsibililty to conduct oversight over the actions of mortgage servicing companies and to develop legislation to protect our constituents from further abuse.”

Several matters are evident. First, mortgage servicing companies are not “banks”. Thus, if this is the position the Fed and the OCC are taking, then the Fed and the OCC are admitting that the “banks” which use the servicng companies (and “supervised” them) were aware of the widespread violations of federal and state law, yet are teaming up with the offending banks to perpetuate their fraudulent conduct.

Second, trade secrets are a form of intellectual property, and any claim for preclusion from disclosure of alleged “trade secrets” has to be ruled upon by a Judge in any litigation if this barrier to discovery is raised. A trade secret is something which an industry has chosen to keep secret for purposes of protecting a legitimate business interest, such as unfair competition. The standard for establishing a trade secret (in a country based on free-market capitalism) is very high.

How do the Fed and the OCC come off arguing that documentation relating to what both the Fed and the OCC have publicly admitted show “widespread violations of federal and state law” by mortgage servicers rise to the level of a “trade secret”? Are the Fed and the OCC really advocating that documents created by mortgage servicing companies which are part of a design to commit legal wrongs on homeowners are “trade secrets” which warrant protection from disclosure and withholding of the information from our elected Representatives and Senators? The letter says it all: the OCC and the Fed are undertaking actions to prevent our elected representatives from implementing legislation to protect us from the fraudulent banks and servicers.

This is beyond outrageous.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 12, 2013As we all know, there are promissory notes with “blank endorsements” on the Note, and there are Notes with no blank endorsement or endorsement of any kind by which the foreclosing party seeks to enforce via undated and unauthenticated “Allonges.” Certain states, such as Florida, have case law which explains the difference between the two, and Colorado has a statute which deals with Allonges and the requirements for proving the legal effect of an Allonge. The two situations (a Note with an actual endorsement in blank or special endorsement on it versus a Note with no endorsement of any kind) are legally different, and the proof requirements for enforcement are different are well.Notwithstanding this, we have had to deal with attorneys for foreclosing “banks” who, in the last 3 weeks and in different states, told courts through Motions, Affidavits, and argument that a Note is “endorsed in blank” when in fact the Note contains no endorsement of any kind, with there only being the presence of a separate paper styled “Allonge” or “Allonge to Note” or “Endorsement Allonge” which is undated and has no independent evidence of authenticity. These attorneys are thus lying to the courts, as are the persons who sign affidavits who claim that the foreclosing party has “the Note endorsed in blank” when in fact there is no such endorsement. This false testimony constitutes perjury, but few Judges seem to think that this matters when the bank’s attorney cries “but Judge, they have not paid the mortgage in years”.We are thus making records and taking appeals where there are decisions rendered based on these false representations and perjured testimony. It seems that some of the courts just want to railroad the foreclosures through without scrutinizing whether the foreclosure action and alleged proofs comply with the law. More appeals courts need to do what one appeals court did in Florida, stating in an opinion that the court’s prior opinion on the issues related to questionable undated endorsement “bears repeating”, because the trial court apparently did not pay attention to the law when it entered the judgment against the homeowner, which judgment was reversed by the appeals court.Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 2, 2013

A Volusia County, Florida Circuit Judge has this morning denied a Motion for Summary Judgment filed by USBank as the claimed trustee of a securitized mortgage loan trust which closed in 2005. Counsel for USBank argued that the “note was endorsed in blank”, which was a falsity as there is no endorsement on the Note at all, and the “Allonge” filed by the Plaintiff after the suit was filed was on a separate sheet of paper and was undated, unnotarized, unwitnessed, and was signed by “Lydian Data Services” of Boca Raton, Florida (a company which was acquired by another company in 2009) with no evidence of authority for Lydian to sign anything for anyone.

The MERS “Assignment” attempted to transfer the loan to the securitized mortgage loan trust years after the trust closed, and was signed by known robo-signer Herman John Kennerty, who testified under oath that he signs between 50 and 150 documents per day and only checks the date of the document. The relevant portion of the deposition was filed with the Court as part of the homeowner’s opposition to the summary judgment motion. Mr. Kennerty set forth no facts in his Affidavit as to the “Allonge” or how USBank came into any interest in the Note. There was also no evidence that USBank had any interest in the Note when the case was filed.

The attorney for USBank also claimed that “The Plaintiff filed opposition to the borrower’s affirmative defenses”, which was also a false statement, as there was no summary judgment evidence filed to negate any of the homeowers’s affirmative defenses. The law in Florida requires admissible evidence to legally refute all of the homeowner’s affirmative defenses.

The homeowner is represented by Jeff Barnes, Esq., who personally argued the matter in court in Deland, Florida this morning. Mr. Barnes was the only attorney to appear personally in court for the entire calendar of hearings; there were six attorneys for the “banks” on the phone, and no other attorney appeared to defend any other homeowner on any of the other cases on the hearing calendar.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 28, 2013

In an earlier post, we advised that a Honolulu, Hawai’i Circuit Court Judge had denied a Motion for Summary Judgment filed by U.S. Bank, N.A. as the claimed trustee of a GMAC securitization which was the foreclosing Plaintiff. The Court has now entered the final Order which states that the Court denied the Motion as “there are genuine issues of material fact (whether the transfer) of the note was proper when Homecomings Financial, LLC filed for bankruptcy.”

This decision is in line with prior decisions of both the State and Federal courts in Hawai’i which have questioned MERS assignments made by MERS “as nominee” of a bankrupt lender and in the absence of any proof that the transfer was authorized by the bankruptcy court having jurisdiction over the estate of the bankrupt lender. Hawai’i has been in the forefront of the decisions on this issue.

As previously mentioned, the homeowner is represented by Hawai’i counsel Damon Senaha, Esq. of Honolulu, and by Jeff Barnes, Esq. who wrote the legal memorandum opposing USB’s Motion for Summary Judgment. Mr. Barnes also represents another Hawai’i homeowner who successfully opposed a Motion for Summary Judgment filed by a securitization trustee which was Motion was denied on the same basis and facts by the same court as the recent decision the subject of this post: that is, the genuine issues of material fact surrounding the alleged assignment of the loan by MERS as nominee of a lender who had filed bankruptcy.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 20, 2013

The foreclosure world has been the subject of some genuinely strange events lately.

We were advised that a judge granted summary judgment in a case where the homeowner never had a mortgage loan with the foreclosing bank and the prior mortgage was never assigned or transferred to the foreclosing bank. Another case has come to us where the homeowner simply asked the bank to change the payment due date on the mortgage, having never been late or requested any type of modification to the loan. The bank told the homeowner that they had to be 3 months behind to change the payment date, and then declared a “default” and foreclosed.

In another case, a Judge denied a temporary restraining Order although admitting the the homeowner showed irreparable harm without the sale being stopped and that the Defendants had been put on notice of the request, yet denied the Motion for a lack of explanation as to why notice to the Defendants was not needed (so notice was provided and admitted but the alleged problem was the lack of a reason why notice was not needed). In yet another case, a Judge granted summary judgment by “rejecting” conflicting material fact information as to an assignment, thereby acting as factfinder on summary judgment (which a court cannot do).

The result is that the appellate courts are going to become busier, as the trial courts which engage in these actions are causing otherwise unnecessary appeals to be filed. (Generally, if a summary judgment is denied, there is no appeal of such a denial and the matter proceeds to trial, where the grant of a summary judgment is appealable). The silver lining in this is that there will be appellate law clarifying the issues which will be binding on the trial courts in future cases. At least that is the presumption, which is not necessarily guaranteed.

We had a previous case in Arizona where the Supreme Court of Arizona had issued an opinion dead-on in the homeowner’s favor on a specific issue. The trial Judge’s response was “that is not the law in my court.” In another case in Oregon, the trial Judge asked where the Oregon law was supporting the homeowner’s position on certain issues. When the judge was provided with the Oregon law and statutes, the Judge said “not in my book it’s not”. We appealed this case and won, reversing the summary judgment.

Thankfully, most Judges in the cases we have are patient and listen to all of the arguments and follow the law, and when there is no law on an issue, defer to the side of not granting summary judgment. Time will tell is this continues, but meanwhile the appeals are being filed.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 6, 2013

FDN attorney Douglas E. Klein, Esq. has scored a major victory in the course of an appeal in the California Second Appellate District (Los Angeles) for his clients, who are tenants. The landlord signed a California Board of Realtors lease in which he warranted that there were no loans encumbering the property which were delinquent. In truth and in fact, a second mortgage on the house was and had been delinquent prior to the time that the landlord signed the lease, which second mortgage was in favor of the landlord’s broker.

The landlord had told the second mortgage holder that he (the landlord) would pay the delinquent second mortgage when the property was rented, which he told the second mortgage holder before the lease was signed. Despite the property being rented and the tenants paying significant deposits and rent to the landlord, the landlord did not pay the second mortgage holder, who filed a Notice of Default on August 12, 2012 to foreclose on the house. The landlord waited until after Labor Day (September) and after he received the September rent from the tenants to tell the tenants that the house was in foreclosure.

The landlord also lied about the condition the house would be in upon his leaving it, which was left in a detestable condition when he and his wife left the United States to live in Canada after taking the tenants’ money (the landlord had 13 people living in the house). The landlord had promised to clean the property in order to induce the tenants to sign the lease, but did not do so, leaving garbage and trash throughout the property and failing to clean the grease, grime, and dirt from the property, leaving the property with a foul odor, all of which required the tenants to expend significant sums to clean the property.

The tenants sued the landlord for fraud, breach of contract, unjust enrichment, and violations of CA Civil Code 17200 (unfair business practices). As a protest, the tenants withheld payment of the rent pursuant to California’s anti-SLAPP law. The landlord then sued for unlawful detainer. The tenants’ anti-SLAPP Motion was denied. Appellants appealed the denial, and the landlord filed a motion to have the appeal dismissed or given calendar preference (accelerated disposition).

Today, the California appellate court denied the landlord’s Motion. Pursuant to California law, the tenants’ lawsuit and the landlord’s claim for unlawful detainer (which were consolidated by prior court order) are stayed pending the full disposition of the appeal. We believe that this is the first decision by a California appellate court to uphold the appealability of the denial of an anti-SLAPP Motion filed in protest to paying rent pending an unlawful detainer action where the landlord has breached the lease prior to filing the unlawful detainer.

Mr. Klein represents the tenants in both the trial court actions and the appeal. He may be contacted directly at [email protected].

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 4, 2013

A Honolulu, Hawai’i state court Judge has denied a Motion for Summary Judgment filed by US Bank as the claimed trustee for a GMAC securitization. There is no date or other source of verification or authority on either of the alleged “endorsements” to the Note; there was no Affidavit filed in support of the Motion; there is no mention of Residential Funding (which appears on one of the endorsements) in the Assignment; and the MERS Assignment was executed on behalf of a bankrupt lender. The Court did not accept USB’s argument that a homeowner cannot challenge an assignment, and on the authority of Deutsche Bank v. Williams, U.S. Dist. Ct. for Hawai’i Case No. 11-00632 JMS/RLP (also known as the “Seabright decision”), permitted a homeowner to challenge the MERS assignment in view of it being made allegedly by a “nominee” of a bankrupt lender. (Homecomings and GMAC both filed for BK in May of 2012).

Jeff Barnes, Esq. prepared the briefing, with the matter being argued by local Hawai’i counsel Damon Senaha, Esq. This is the second ruling from the Honolulu state court denying a trustee bank’s Motion for Summary Judgment in a case where Mr. Barnes was retained by the homeowner and prepared the briefing opposing the summary judgment.

Separately, another Hawai’i homeowner was just presented with what appears to be the latest scam from Bank of America, which is apparently looking for a way to short-circuit having to pay for foreclosures and attorneys to prosecute them and reduce its apparent debt to the government. Like the loan mod offers of the past, this is a non-offer. It is solely a mechanism designed by BOA to take someone’s home without even having to institute a foreclosure and obviously without having to deal with a foreclosure challenge, and in a further obvious effort to reduce what must be a tremendous debt owed by BOA to Fannie Mae.

The vehicle has been termed a “mortgage release” (followed by the trademark “TM” letters). BOA claims that it is “working with REDC Default Solutions, a third party servicing company” on this, whereby the homeowner just voluntarily transfers ownership of their home and all property secured by the mortgage to Fannie Mae. This is so that the homeowner is “spared having to go through a foreclosure”. The only thing being “spared” is BOA having to spend money on a foreclosure and providing its obvious creditor Fannie Mae with a quick and painless inventory of tangible assets.

The “deal” (a) does not allow the homeowner to keep their home; (b) creates a deficiency and a situation where the homeowner may have to pay Bank of America or Fannie Mae monies while the alleged “process” is being reviewed; (c) does not stop foreclosure or a sale; and (d) repeatedly refers to otherwise unidentified “terms and conditions” that the homeowner has to satisfy to remain in the home until the voluntary transfer is completed, after which a move-out date is allegedly set.

BOA must think that the American public is dumb enought to fall for this scam, and is brazen enough to even offer it. Wow! You can VOLUNTARILY surrender your home to the government and pay them for the privilege of doing so, and the alleged “bank” will not have to pay for a foreclosure or deal with a foreclosure challenge! And this is for the alleged “benefit” of the homeowner!

Does it get any more ridiculous than this? It probably will. We thought the loan mod scams, where homeowers were told that they had to be 2 or 3 months behind in their payments in order to “qualify” for a loan mod and were then told that they could not get a loan mod because they were in default and were being foreclosed upon, were bad. This new scam just adds insult to injury.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 20, 2013

Jeff Barnes, Esq. has been retained to prosecute Adversary proceedings in foreclosure-related matters in pending Bankruptcy proceedings in the U.S. Bankruptcy Courts for the District of Mississippi and the Middle District of Florida. He has also been retained to defend a massive foreclosure involving significant property in Tennessee; two new foreclosure filings in New Jersey; and other new foreclosure cases in Florida.

We previously advised that foreclosure activity was going to be on the rise. An article which was provided to us thereafter as to foreclosure activity nationally predicted an increase in foreclosures in Florida, Pennsylvania, New Jersey, and Illinois. As verification thereof, many Florida foreclosures where Mr. Barnes represents the homeowner, which cases have been dormant for periods of from one to 4 years, are now being revived with recent filings by the foreclosing plaintiffs which indicate forthcoming summary judgment motions. Several cases have also been scheduled for trial by the Courts as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 12, 2013

In the course of our ongoing investigation into the machinations of the “banks” to devise various forms of “loans” designed to strip the equity from a homeowner, the reverse mortgage is one of the worst. Targeted at elderly borrowers (who have, over the years, paid down or paid off their mortgage), a reverse mortgage depletes the equity in one’s home and evicts the surviving spouse after the death of the “borrower” spouse through a foreclosure.

The case which has been brought to us reveals that the process was accomplished through trickery and fraud. The elderly husband borrower was listed as the only “borrower” on the Note, although both the husband and wife were listed on the Deed of Trust. When the wife asked why she was being told not to sign as a borrower, she was told “Don’t worry, that is just to get the loan approved. There will be a quit claim deed after the loan is approved so you are protected”.

Unbeknownst to the wife, quit-claim deeds have nothing to do with adding a spouse to a promissory note. What happened is that the husband passed away, triggering the acceleration of the “loan” and a foreclosure. The foreclosing party claims that the wife is not protected as she is not listed as a “borrower” although the foreclosing party (Reverse Mortgage Solutions Inc.) claimed a default and sought to void her interest in the property through foreclosure.

The husband was older than the wife. The entity originating the reverse mortgage obviously knew that by failing to make the wife a listed “borrower” that once the husband passed, it could declare a default (as the “borrower” is dead and cannot make any “payments”), and as the wife had no income, she could be readily foreclosed upon and evicted from her home which she and her husband built with no place to go after living in the house for over 35 years.

The former Senator/actor and a second actor who have advertised these reverse mortgages on television should be ashamed for promoting these outright equity-stripping vehicles which take advantage of elderly borrowers who have little or no mortgage debt. The former Senator especially, as he was chief minority counsel of the Senate Watergate Committee in 1973-74. For someone who had previously taken such an active role in seeking to protect citizens of our country from illegal actions to now endorse an outright equity-stripping vehicle which targets elderly homeowners in the midst of a foreclosure crisis defies comprehension.

The battle is shaping up to one which is going to pit contractual language against equity and fairness and contract principles of good faith and fair dealing in addition to fraud by omission. We have had inquiries into other reverse mortgage cases, and the AARP has filed a massive lawsuit involving claims that reverse mortgages violate Federal statutory protections for elderly borrowers as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com