February 1, 2013

Today, a Hillsborough County, Florida Circuit Judge has denied a motion for summary judgment filed by JPMorgan Chase Bank, N.A. involving a WaMu origination. The borrower is represented by Jeff Barnes, Esq. who argued the matter in a Tampa courtroom this morning. Mr. Barnes filed the Lawrence Nardi deposition in which Mr. Nardi, as a former employee of WaMu who became employed with JPM after the failure of WaMu, testified that although a schedule of WaMu mortgage loans to be purchased from the FDIC was contemplated, it was never prepared, has never been produced in any case, and does not exist. JPM separately admitted in the Federal litigation that it is not the successor in interest to WaMu in its own motion for summary judgment which it filed in that case, which Mr. Barnes filed as well.

Based on the questions as to JPM’s standing raised by the Nardi deposition and the Federal court admission and the lack of any sworn testimony in JPM’s Affidavit as to when and how it came into possession and ownership of the Note, the Court denied summary judgment.

Mr. Barnes has filed the Nardi deposition and the Federal court admission in several cases, but this was the first time that they were tested for summary judgment purposes, resulting in summary judgment being denied. The Court also ordered that Mr. Barnes may take the deposition of a corporate representative of JPM in light of the issues.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 31, 2013

As most of you know, approximately 52 servicers and lenders, including GMAC Mortgage LLC, filed for Bankruptcy in mid-May of last year. As you may not know, however, GMAC obtained stay relief to pursue foreclosures, and recently, Warren Buffett’s Berkshire Hathaway bought the loans from the BK trustee lock, stock, and barrel “free and clear of liens” from the sellers. What that means is that, for all practical purposes, anyone with a foreclosure involving GMAC or any other the other 51 entities who sold their assets to Berkshire may find that Berkshire is the new foreclosure mill.

Not so fast, however. We have been advised that someone has been offered a significant principal reduction in connection with an unsolicited loan mod offer from MERS “for GMAC”. MERS in fact signed the proffered loan mod. Figure that: MERS, which does not extend credit, loan money, or collect money and is not a lender, is offering a loan mod on behalf of a bankrupt entity.

Separately, we are seeing more and more instances where courts are faced with a situation where there is no law on a given foreclosure issue out of that state’s appellate courts, leaving the trial courts with no guidance from law of that state. As anyone who has studied law knows, the law is dynamic and not static, and has to change and adapt with the times. In the world we live in, that means that there has to be someone willing to take an issue to the state appellate court which has no law on an issue in order to establish it, as we did in Oregon on the MERS issue, which we are also taking to the Montana Supreme Court this spring.

One of the facilitating vehicles in the law, which is common in each state, for making new law is case law which permits a state with no law on an issue to look to what is called the “law of other jurisdictions” for guidance: that is, for example, State A, which has no law on a given issue, can look to case law from States B, C, D, etc. which have case law on the issue to see how it has been analyzed. Ohio did this with New York decisions on foreclosure issues as early as 2008, and the trend has been followed ever since.

Attorneys for the banks like to take the position, when there is no state law on an issue in a state where a case is pending, that “Judge, there is no law on this in our state, so the homeowner’s request must be denied.” In reality, this is the perfect situation for showing the court that other states HAVE dealt with the issue, which can provide the Judge with guidance and so that he or she does not have to “re-invent the wheel.”

The problem, of course, is when the banks misinterpret or misconstrue what a case really says, like they have been doing nationally with the Livonia Properties case out of the U.S. District Court for the Eastern District of Michigan. Banks like to take the postion that the case stands for the proposition that a borrower cannot challenge an assignment. What the case actually says is that a borrower CAN challenge irregularities in the foreclosure process under Michigan’s non-judicial foreclosure statute including irregularities in the assignment process.

Per our prior posts, 2013 looks to be a year of “making law” in the foreclosure arena with the numerous appeals pending, and with more on the way. We will continue to advise of these decisions.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 21, 2013

FDN attorney Jeff Barnes, Esq. has been recently admitted to the United States Court of Appeals for the 6th Circuit, adding to his prior admissions to the United States Courts of Appeals for the Third, Tenth, and Eleventh Circuits. Mr. Barnes has also been recently retained to handle six (6) appeals in six different jurisdictions, which appeals are in both Federal and state courts. The Firm has also been recently retained on new foreclosure filings in various states, including Indiana, Tennessee, Colorado, and Florida.

As those of you who follow this website are aware, the MERS issues were argued by Mr. Barnes in the Supreme Court of Oregon on January 8, 2013, as MERS appealed the decision of the Oregon Court of Appeals which ruled against MERS. Mr. Barnes will also be presenting the MERS issues to the Supreme Court on Montana next month in another case of first impression, as Montana has no state appellate law on the MERS issues (as Oregon did not until the Oregon Court of Appeals issued the Niday decision on July 18, 2012 which was argued by Mr. Barnes as well).

There are many states which have no state appellate law on many of the issues in foreclosure defense litigation, including the MERS issues and securitization related issues (compliance with PSA requirements, etc.). It has been and will continue to be part of the mission of FDN attorneys to make the law on these issues so that states have guidance from their state appellate courts.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 10, 2013

It is now public knowledge that the Law Offices of Marshall C. Watson, P.A., a Florida foreclosure mill, has been ordered to be shut down and closed pursuant to a Consent Judgment with The Florida Bar, which also suspends the lead attorney for 91 days and found that an attorney in the Firm was paid $1.00 for each of the thousands of Affidavits “robo-signed” outside of the presence of a Notary and without that attorney having knowledge of what was being signed, which Affidavits were filed in courts. The Bar has stated that it is “the lowest point” in the foreclosure process.

Like the prior closure of the infamous Law Offices of David J. Stern, P.A. (which was formerly the most active Florida foreclosure mill which left over 100,000 foreclosure cases in limbo when the office shut down), the closing of Marshall Watson will leave tens of thousands of foreclosure cases without counsel and thus “up in the air” to be re-routed to other Firms, assuming they will accept them. With the legal infirmities in these files, no other Firm may want to take on a file from a Firm which has been found (and admitted) to have created fraudulent foreclosure documents. Many of the Stern cases still have not been re-assigned to this day despite that Firm having been out of business for over a year.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 31, 2012

2012 saw the advancement of many homeowner-related issues in foreclosure defense litigation around the United States. FDN was at the forefront of many of these matters, which are pressing into 2013. Some of the highlights from 2012 include the following:

In Delaware, we forced the issue of securitization discovery and caused MERS to dismiss a case where it attempted to foreclose in its own name. The issues surrounding what MERS can and cannot do are still unresolved in Delaware, as are the issues related to securitization.

In Florida, we caused several cases to be dismissed and attorneys’ fees to be assessed against the foreclosing “banks”, which attorneys’ fee awards were paid. We are also advancing multiple appeals on the issue of the validity of alleged “blank endorsements” under the McLean line of cases.

In Tennessee, we forced the issue of securitization discovery and compelled that discovery to be provided with a Motion to Dismiss pending.

In Oregon, we prevailed in the Oregon Court of Appeals on the issue of wherther MERS is a “beneficiary” for purposes of the Oregon Trust Deed Act, with the COA holding that it is not. The issue is being argued in the Oregon Supreme Court on January 8, 2013 as MERS appealed the COA decision.

In Hawaii, we defeated summary judgment and caused a court ruling which has permitted an attack on a nonjudicial foreclosure which took place 3 years ago, in accordance with the homeowner’s claim that there was no strict compliance with HRS 667-5 (Hawaii’s nonjudicial foreclosure statute).

In New Jersey, we forced the issue of securitization discovery and caused the dismissal of additional cases due to the foreclosing “bank’s” noncompliance with Management Orders.

In Michigan, we are actively litigating the issue of the alleged preclusion of attacks on assignments under the Livonia Properties case, which actually does not prohibit such attacks. The “banks” continue to misrepresent the alleged limitations of the case, with the distinctions being clarified by later decisions of the same Court which rendered the Livonia Properties opinion.

We brought securitization issues into Indiana, where there is still no appellate case law relating to these issues.

In Colorado, we caused a foreclosure to be dismissed at the Rule 120 stage with a written opinion, which ruling is being used in other cases across the state.

In Montana, we are bringing the MERS issues to the Montana Supreme Court as there is no appellate law on MERS in Montana.

There are a multitude of issues being brought in pending foreclosure actions both in these states and others, as many states still, to this day, do not have any appellate-level case law on many of the issues surrounding foreclosures, including the validity of alleged “blank endorsements”; the validity of alleged “assignments” (including alleged “Allonges”); and all of the securitization issues related to credit default swaps, insurances, and third-party payments on loans, which issues have been vigorously fought by the “banks”. We anticipate that 2013 will see the further development and refinement of a multitude of legal issues which will be pressed by our national network of law Firms, which network began with Mr. Barnes and one Firm in Maryland in early 2008 and now has 41 member Firms with more Firms requesting to join the network in 2013.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 28, 2012

In a decision rendered on December 21, 2012, the Supreme Court of Michigan held that JPMorgan Chase did not acquire any WaMu loans from the FDIC by operation of law, as when a subsequent mortgagee acquires an interest in a mortgage through a voluntary purchase agreement with the FDIC, the mortgage has not been acquired by “operation of law” and that subsequent mortgagee must comply with the provisions of MCL 600.3204 and record the assignment of the mortgage before foreclosing by advertisement. The decision affirmed the prior decision of the Michigan Court of Appeals on this issue.

The case is Kim v. JPMorgan Chase Bank, NA, Docket No. 144690, 2012 Mich LEXIS 2220, which affirmed the Court of Appeals’ reversal of the trial court’s summary judgment in favor of JPM. The Court of Appeals found that JPM’s failure to record the assignment rendered the Sheriff’s sale void ab initio, but the Supreme Court held that it is voidable.

The problem for JPM, in a Michigan non-judicial foreclosure, is that it will have to prove that it acquired a specific mortgage loan from WaMu, which is going to be difficult in light of the sworn deposition testimony of Lawrence Nardi (previously posted on this website) that there was never a schedule of WaMu mortgage loans purchased from the FDIC and that such a schedule does not exist, and JPM’s admission, in the D.C. Federal litigation, that it is not the “successor in interest” to WaMu. Given this record evidence and judicial admission, any purported “assignment” of a WaMu loan to JPM out of the FDIC would be suspect at best.

The opinion does not discuss these issues, which were apparently not raised and as the opinion strictly limited its holding to whether JPM acquired the homeowner’s WaMu loan “by operation of law”. Thus, all of the evidentiary issues as to whether there was any effective transfer of the homeowner’s loan to JPM remain to be raised.

This is a step in the right direction on a major point, as JPM has made the assertion, in litigation in several states, that it became the owner of a homeowner’s WaMu mortgage loan “by operation of law”, which assertion has now been proven by the Supreme Court of Michigan to be false.

Thanks to one of our dedicated followers for bringing this important decision to us.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 10, 2012

Today, a Special Master appointed by a Tennessee state court Judge ordered discovery, including securitization discovery, to proceed, denying a Motion which had been filed by Bank of New York (as “trustee” of a CWALT securutized mortgage loan trust) to stay discovery pending a ruling on BONY’s Motion to Dismiss. The discovery was ordered to proceed before any ruling on the Motion to Dismiss, in accordance with a prior pronouncement of the Judge at a prior hearing. The Special Master also denied BONY’s Motion to Dissolve a restraining order which had been entered by the Judge staying all foreclosure activity, which order was entered without the necessity of the posting of a bond. The Special Master found that “the Judge thinks that this is serious enough to warrant injunctive relief.”

The securitization issues presented to the Special Master are believed to be the first of their kind raised in Tennessee, which has no appellate law on MERS or securitization. The case is fraught with issues including a toxic, post-trust closing assignment by MERS over 5 years after the trust closed; conflicting documents filed by MERS and ReconTrust as to who the alleged assigning party is; and whether BONY has any interest in either the Note or the DOT whatsoever.

Jeff Barnes, Esq. represents the homeowners together with local counsel Andrew Farmer, Esq. Mr. Barnes prepared the briefs and personally argued the matters in court in Sevierville, Tennessee today.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 6, 2012

Yesterday, an Oakland County, Michigan Judge overruled numerous objections of foreclosing Plaintiff Citimortgage, Inc. (CMI) in a judicial foreclosure action where CMI relies for its alleged standing on a pahntom assignment (which CMI admits was “lost” before it was recorded with present whereabouts unknown), and an alleged “endorsement” from the original lender which went out of business in 2009 and was found by the State of Michigan Department of Labor and Economic Growth Office of Financial and Insurances Services (OFIS) to have engaged in fraudulent mortgage activities in connection with the origination and sale of mortgage loans to third parties, including WaMu. The Cease and Desist Order, with detailed findings, is 38 pages in length, and readily available by googling World Wide Financial Services.

CMI’s counsel took the position, unsupported by any Affidavit or other evidence, the now all too familiar “we have the Note, it has an endorsement in blank, thus we win and everything the homeowner asks for is irrelevant” tack. The Court disagreed, ordering CMI to serve discovery responses to the homeowner’s request for the production of all documents which purport to assign any interest in the mortgage or Note to any party; all documents evidencing the recording of any such assignment of either the Note or the mortgage; all documents setting forth the entire chain of title to the Note and mortgage from the original lender to the true and present holder; all documents setting forth payments and credits on the loan and the disposition of all payments made; all documents setting forth the treatment of taxes including the establishment of escrows and payments from escrows; and all appraisals as to both the property and the mortgage loan as well as other documents relating to charges in connection with the mortgage loan.

Jeff Barnes, Esq. represents the homeowner together with local Michigan counsel Priya Kumar, Esq. Mr. Barnes filed the formal response to CMI’s “Motion to Quash” the homeowner’s discovery and argued the motion yesterday.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

November 28, 2012

It is no secret, for those of you who follow this website, that pursuant to the sworn deposition testimony of Lawrence Nardi, who was previously employed by Washington Mutual and thereafter by JP Morgan Chase, which sworn deposition testimony is under oath and subject to the penalties of perjury, that there was NEVER a mortgage loan schedule as to any mortgage loans “purchased” by JPM from the FDIC pursuant to the Purchase and Asset Agreement (PAA) between the FDIC and JPM dated September 25, 2008, which was the day that WaMu failed. A full copy of the Nardi deposition transcript will be e-mailed to anyone who requests it from us.

It is also no secret that JPM admitted, in its Motion for Summary Judgment in the case which Deutsche Bank filed against it and the FDIC in the U.S. District Court for the District of Columbia, that JPM is NOT the successor in interest to WaMu. This affirmative representation by JPM in its filing to the U.S. District Court, which expressly stated that only CERTAIN assets and liabilities were assumed by JPM from the FDIC, constitutes a judicial admission against JPM. Despite this, JPM continues to go around the country claiming, in court filings and other written documents, to be the “successor in interest” to WaMu in its effort to foreclose. This is the same type of lie which MERS perpetrated when it told the Supreme Court of Nebraska that it has no interest in mortgage loans and does not collect money, etc., yet states in filings in the other 49 states that it is the “mortgagee” (in a mortgage) or “beneficiary” (in a Deed of Trust) and is entitled to foreclose.

JPM is thus either lying to the United States Federal Court, or is lying to all other courts in the U.S. Our opinion, in view of the Nardi deposition and the filing/judicial admission in the DB case, is that JPM is lying to numerous courts around the country as to being the “successor in interest” to WaMu and claiming it has the right to foreclose. This is one of the largest judicial frauds ever committed, which is being done on a national scale.

The foreclosure mills, including the Shapiro Fishman & Gache Firm in Florida and the Phelan Hallinan & Schmieg Firm (a foreclosure mill based in New Jersey with a branch office in Florida) have reacted to these undisputed facts with recent court filings seeking to strike homeowner defenses to foreclosure with motions seeking to strike the homeowners’ defenses and for sanctions. Perhaps these foreclosure mills think that the Courts will not be made aware of the sworn admissions of Mr. Nardi (made under the penalty of perjury) and the judicial admissions of JPM in the DB Federal litigation. Anyone facing these types of challenges needs to file the Nardi deposition and request that the Court take judicial notice of the admissions of JPM in the DB Federal litigation. If it is found that the foreclosure mill asserted a frivolous motion, the homeowner should seek sanctions against JPM and the foreclosure mill as available under applicable law, including but not limited to attorneys’ fees.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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November 27, 2012

FDN’s Jeff Barnes, Esq. has been retained as lead appellate counsel in appeals pending in six different states on leading issues in foreclosure defense. The appeals are in state, Federal, and Bankruptcy Courts.

In Hawaii, Mr. Barnes has been retained to appeal the grant of a summary judgment where there are multiple issues of fact relating to the standing of a non-lender to institute a non-judicial foreclosure, where the corporate representative of the non-lender denied, under oath, any personal knowledge of numerous issues relating to the alleged transfer of the mortgage and Note.

In Colorado, Mr. Barnes has been retained to prosecute an appeal in the 10th Circuit Bankruptcy Appeallate Panel on securitization issues as they relate to the grant of relief from the automatic stay to pursue foreclosure.

In Oregon, Mr. Barnes has been retained to defend his earlier victory in the Oregon Court of Appeals on the issue of whether MERS is a “beneficiary” under the Oregon Trust Deed Act. MERS has appealed that decision. Mr. Barnes is also appealing an adverse verdict at trial in another case where the homeowner’s securitization defenses were excluded by the trial court.

In Tennessee, Mr. Barnes is appealing, to the United States Court of Appeals for the 6th Circuit, the grant of summary judgment in a securitization case where the homeowner requested a declaration that the securitized trustee did not own the mortgage loan. Mr. Barnes was admitted to the 6th Circuit today. A second appeal is being taken to the Tennessee Supreme Court from an affirmance, by the Court of Appeals, of an adverse decision by the trial court where the trial court did not permit the homeowner to raise defenses to a summary judgment motion which was back-noticed without notice to the homeowner’s counsel.

In Montana, Mr. Barnes will be taking an appeal of the MERS issues to the Supreme Court of Montana, similar to the Oregon appeal, as Montana has no appellate law on what MERS can and cannot do.

In Florida, Mr. Barnes is prosecuting three separate appeals in three different appellate districts. All relate to the grant of summary judgment in favor of the non-lender foreclosing party.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com