April 1, 2011

Borrowers who attempt to challenge a foreclosure with the “Demand For Presentment” are making themselves into April Fools. This nonsensical, illegal, and phony “technique” has been universally rejected by courts across the nation and has absolutely no basis in either statutory or decisional law to legally challenge a foreclosure. We continue to be bombarded with horror stories of borrowers who have had their hind quarters handed to them by Judges who are presented with the “Demand”.

The problem is that there is so much malarky out there on the internet, much of it being perpetrated by non-lawyers, which desperate borrowers are latching on to and then losing their homes, or wind up having to come to attorneys begging the attorney to try to find a way out of the morass after the case has already been poisoned. The same goes for such arguments as “the bank did not lend me money”, or “the bank was not a bank”, and the like.

Which leads then to the loan and trust investigation scammers. We have been advised of a man who is holding himself out as a loan and trust “investigator” who is not an attorney; who has not had any formal training in loan or trust investigations; who tells people certain trusts do not exist when in fact they do; who is charging thousands of dollars for simply reprinting pages upon pages of information in his “report” which information he downloaded from the SEC public website; and who has been pirating the work of others and calling it his own.

The moral here is to be cautious and to “investigate the investigator”, as this latest cottage industry is riddled with scammers, smiliar to the “loan mod” scams of recent years before they were shut down by various Attorneys General.

Our loan and trust investigator is highly trained and has stood the test of time as to her work in cases across the United States. It took us awhile to find her, but we are glad we did.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 31, 2011

We have completed reservations for the rescheduling of the FDN foreclosure defense seminar in Edison, New Jersey, which will now be held on Friday, May 20, 2011 at the Holiday Inn. Details are on prior posts on this website, and registration forms are available by e-mail request.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 31, 2011

Several states are emerging as battleground jurisdictions as myriad new foreclosures are being filed and initiated, and in view of the lack of decisional law from these jurisdictions relating to MERS and securitization issues. We have received many new inquiries from Tennessee, Colorado, Oregon, Washington, and Hawaii where borrowers have been attempting, unsuccessfully, to defend the foreclosure actions by themselves, which we always advise is a disaster waiting to happen. This is especially true where there is a lack of applicable case law on the issues. In fact, a number of our recent new cases are “cleanup” cases where we have had to completely amend a pro se court filing in order to properly frame the issues and have the pleading comply with local procedural requirements. 

At his second Management Conference this week in New Jersey, Jeff Barnes, Esq. and his local counsel have advised the Chancery Judges of the stall, delay, and obstructive tactics of the New Jersey foreclosure mills, which repeatedly engage in “robo-denials” of Requests for Admissions (even as to matters which are apparent by nature of the Plaintiff being the alleged “trustee” of a securitized mortgage loan trust); meritless objections to the production of securitization and trust documents; and refusals to comply with court orders compelling such documents.

In a recent exchange of correspondence between his Firm and the Palm Beach County, Florida Circuit Court, the now infamous David J. Stern has advised the Court that his Firm is in the process of withdrawing from representing the foreclosing Plaintiff in over 100,000 foreclosure cases filed by his Firm. The Court denied Stern’s request for “more time” to have the withdrawals processed (as Stern complained of a severe reduction in staff, etc.), and advised Stern that if the Plaintiff fails to appear for a Case Management Conference that the action runs the risk of being dismissed.

Kudos and bravo to the Palm Beach Circuit Court for telling Stern and his former clients that the Court will not tolerate any further clogging of its dockets and delay caused by Stern’s filing of so many foreclosures, a great many of which, based on matters revealed by the Florida Attorney General’s investigation and trial court rulings as to the misconduct of Stern’s Firm, were probably filed with phony or fraudulent documents. Jeff Barnes, Esq. has filed Motions for Attorneys’ Fees in Stern cases which have been dismissed pursuant to recent Florida case law which permits such requests to be made after either a voluntary or involuntary dismissal of a foreclosure case.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 27, 2011

FDN is pleased to announce that it has added the law offices of John R. Sterbick, P.S. in Tacoma, Washington to the FDN network to assist with Seattle-area cases. As we have previously published on this website, Washington has a “use it or lose it” trustee’s sale statute, which requires a borrower to file an action to challenge a foreclosure sale before the sale takes place in order to preserve a challenge to the foreclosure. Failure to do so limits, by statute, the borrower’s post-sale remedies solely to damage claims which cannot in any way affect title to the property, or create a lien on the property, or affect the rights of anyone who purchased the property at the sale.

We have also just received a number of inquiries from borrowers who are being subjected to foreclosure proceedings by SunTrust Mortgage, Inc. Our ongoing litigation with SunTrust reveals that SunTrust did in fact sell off mortgage loans to third parties, but retained servicing rights under the same corporate name leading borrowers to believe that since the name of the “lender” and the name of the foreclosing party are the same that no transfer of the loan occurred. It was only through our rigorous discovery that SunTrust’s practices were revealed.

In New Jersey cases, the foreclosure mill Zucker Goldberg continues to obstruct and refuse to produce discovery, including securitization documents, despite a history of court orders compelling such discovery and court-ordered dismissals of foreclosure actions filed by the Zucker Firm as a sanction for failure to comply with court orders compelling this discovery in cases where Jeff Barnes, Esq. and local New Jersey counsel Michael Jacobson, Esq. represent the borrowers and have repeatedly sought this discovery. The same discovery which has been compelled by the New Jersey Chancery Courts (which handle foreclosure cases in New Jersey) has also been recently compelled, on Motion filed by Mr. Barnes, in cases in Oregon and Florida.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 22, 2011

In a proposed agreement with New Jersey’s six largest mortgage servicing companies, the New Jersey judiciary would end the judiciary’s proceeding filed last December which threatened to shut down foreclosures and sales. The agreement would instead require servicers to file papers by April 1, 2011 showing that they have “cleaned up” their improper foreclosure practices such as using robo-signers. We anticipate foreclosures to thus resume and “ramp up” if this proposal is finalized.

We have had to reschedule the foreclosure defense seminar which was scheduled for Friday, April 1, 2011 in Edison, New Jersey as Mr. Barnes has been called to a specially set hearing in Hawaii to be followed by meetings with Hawaii homeowners seeking to challenge imminent foreclosures. The seminar will likely be rescheduled for the latter part of April, 2011. Please moniter this website for the new date.

Finally today, we highly recommend that anyone engaged in foreclosure defense immediately see the movie “Inside Job”. It takes a bit to get going, but it will give a primer of why we are in the situation we are in and how we got here. Just try not to throw your shoe, beer mug, wine glass, or a brick at the screen when the villians from Goldman Sachs, the Financial Services lobby, etc. start spewing their outright lies. 

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com 

March 17, 2011

FDN attorney Jeff Barnes, Esq. has scored five separate victories in five separate foreclosure defense cases in a span of less than 48 hours. On the afternoon of Monday, March 14, 2011, the Ft. Myers, Florida Circuit Court granted his Motions to Compel securitization, trust, standing, chain of title, real party in interest, setoff, and other discovery in four separate cases, which were filed by Citimortgage, Deutsche Bank, Fifth Third Mortgage, and Bank of New York by the David Stern, Marshall Watson, and Goldfarb law Firms. Entitlement to attorneys’ fees was granted in the Citimortgage, Deutsche Bank, and Fifth Third Mortgage cases. Each of the four cases involved “objections” to the borrower’s discovery which objections were filed months after the discovery request was filed, in one case the objections being filed 14 months after the discovery was originally served.

On the morning of March 16, 2011 in a separate case filed by Citibank as trustee for a securitized mortgage loan trust in Palm Beach County, the Court struck the motion for summary judgment filed by Shapiro & Fishman from the calendar. S&F filed the motion after engaging in a series of acts designed to thwart the borrower’s discovery attempts. S&F originally filed a Motion on behalf of Citibank for “additional time to formulate its responses” to the discovery requests, and then objected to 49 of the 50 categories of the discovery request. Mr. Barnes set a hearing on the objections and personally appeared, but when he left the courtroom briefly, the attorney for S&F wrongfully told the Court that Mr. Barnes “failed to appear”, resulting in an Order denying the Motion. Mr. Barnes alerted the Court to the actions of the S&F attorney, and the Court granted rehearing and reversed the prior Order. Mr. Barnes attempted to resolve the objections with S&F, but S&F’s response was only the forwarding of a “loan mod” package. When the borrower rejected the proposed loan mod, S&F filed and noticed a hearing on a Motion for Summary Judgment and refused to reschedule that hearing pending a ruling on the discovery objections per the Motion requesting the Court to do so which had been filed months earlier.

The Palm Beach Circuit Judge struck S&F’s summary judgment from the calendar and prohibited it being rescheduled until the discovery objections are resolved, which is being scheduled for a specially set hearing. This same discovery has already been compelled by courts in Oregon, New Jersey, and Florida on Motions filed by Mr. Barnes.

Last week, Mr. Barnes took depositions in Tuscon in an Arizona case which revealed a pattern of a “lender” not only luring unsuspecting borrowers into predatory loans which the lender knew the borrowers could not afford to service (but which the branch manager of the lender told them over and over again that they could), and in one instance, required a borrower to take out a $380,000.00 equity line on her home which had no mortgage on it to provide “additional security” for a construction loan after the borrower had already been lured into entering into a land acquisition loan with no conditions. It was only after the acquisition loan was entered into that the lender thereafter imposed the requirement of the equity line as a condition of the construction loan, the entirety of the equity line going right to the lender.

The borrower was thereafter foreclosed on both her home (on the equity line which was to be repaid from the sale of the new home) and the new property as well after the lender refused to release the remaining two percent (2%) of the construction loan to the general contractor so that the new home could be completed, a CO issued, and the property sold when the market was still active and commanding good prices. The lender’s purported excuse for not releasing the last 2% of the construction loan was “invoice issues” with the GC, which obviously could have been resolved after the completion of construction between the GC and the lender so that the home could be completed and sold. In another case, the lender’s “recommended” GC walked off the job after using all of the proceeds of the construction loan but only completing less than 65% of construction.

Next week, Mr. Barnes will be continuing with filing Motions in foreclosure cases in Colorado, Iowa, and Minnesota, and then traveling to New Jersey for court hearings in other foreclosure cases after which he will be attending court hearings in Hawaii before returning to Florida for more court hearings, including hearings requesting the imposition of attorneys’ fees against foreclosing Plaintiffs including JPMorgan Chase.

Mr. Barnes has also been recently approached by the WaMu Support Group for assistance in cases involving JPMorgan Chase.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide

March 1, 2011

A Colorado District Court Judge today granted Jeff Barnes, Esq.’s Motion for a Temporary Restraining Order to stop a public trustee’s sale scheduled for tomorrow morning, March 2. The Order was entered less than an hour before the Court closed. The Motion was filed yesterday (Monday, February 28) after Mr. Barnes only received notice on Friday, February 25, 2011 that the sale was to be held tomorrow.

Separately, Mr. Barnes is now handling several cases in Colorado as lead counsel, and has been requested to become co-counsel in several others in connection with challenges to foreclosure including cases involving Colorado’s Rule 120 pre-foreclosure hearing procedure. Borrowers are asserting that prior case law of the Colorado Supreme Court governing the scope of Rule 120 hearings, which case law permits issues challenging a foreclosure to be asserted in the hearing, is not being followed by certain Colorado courts.

Mr. Barnes was also recently admitted pro hac vice in Knox County, Indiana, and will be filing for similar admission to the Maui, Hawai’i court in several cases there as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 1, 2011

HSBC Bank USA and HSBC Finance Corp. have halted all foreclosures until further notice, and may be faced with regulatory actions, fines, and penalties arising out of “certain deficiencies” in foreclosure procedures and mortgage loan servicing. The information was buried deep within HSBC’s 10-K report filed with the Securities and Exchange Commission. HSBC said it will be substantially addressing noted deficiencies in its foreclosure processes and will “correct documentation and refile affidavits where necessary” in the wake of issues involving robo-signing and other irregularities.

The issue here, obviously, is not HSBC “correcting” anything: it is that HSBC, like others such as Wells Fargo, Bank of America, and JPMorgan Chase, have finally been caught filing false and fraudulent documents in foreclosure proceedings resulting in frauds upon the various courts for which they should be appropriately sanctioned. Borrowers should zealously seek sanctions against such conduct including dismissal of a judicial foreclosure with prejudice or cancellation of a non-judicial foreclosure for fraud. Simply permitting the banks to “correct” what are outright fraudulent actions cannot be tolerated by any court, as there is no procedural rule or substantive law which permits a party to “correct” a fraud upon the court, especially a fraud in the form of a sworn affidavit such as an Affidavit of Indebtedness or Affidavit in Support of Summary Judgment. That is called perjury, and perjury cannot be “fixed”.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 18, 2011

FDN has confirmed the dates for its upcoming seminars in California and New Jersey.

The next Newport Beach, California seminar will be on Friday, March 4, 2011 and will be at the Newport Office Center located at 2901 West Coast Highway, Third Floor, Newport Beach, California.

The New Jersey area seminar will be on Friday, April 1, 2011 at the Holiday Inn located at 1171 King George Post Road, Edison, New Jersey 08337. Discounted room rates of $89.00 are available by calling the Holiday Inn at (732) 638-0005. Please mention the seminar of Friday, April 1, 2011.

Both seminars will cover updated case law, discovery, and recent developments in foreclosure defense including court rulings and findings by the Congressional Oversight Panel. The topic areas for the seminars and additional details are set forth on a January 24, 2011 posting on this website.

Attendance is limited to attorneys and paralegals associated with law Firms only. Registration forms are available by e-mail request to [email protected].

Separately, FDN has recently added new local counsel in several states. We are pleased to announce the addition of attorneys John Higgins, Esq. (Nashville, Tennessee area); Paul Ledford, Esq. (Vincennes/Terre Haute, Indiana area); and Brent Adams, Esq. (entire state of North Carolina) to the national network.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 16, 2011

FDN’s Jeff Barnes, Esq. has been admitted to the Washetnaw County, Michigan Circuit Court pro hac vice in connection with defense of a foreclosure involving a securitization. He is assisted by local Michigan counsel James Fraser, Esq.

On the subject of securitization, we have obtained a copy of the November 16, 2010 Congressional Oversight Panel’s Report examining the consequences of mortgage irregularities. The 127 page report discusses assignments, MERS, the problems with “robo-signers” and other document infirmities.

We find very significant the matters on page 19 of the Report, which state as follows regarding assignment of mortgage loans to a securitized mortgage loan trust:

        “As described above, in order to convey good title into the trust and provide the trust with both good title to the collateral and the income from the mortgages, each transfer in this process required particular steps. Most PSAs [Pooling and Servicing Agreements] are governed by New York law and create trusts governed by New York law. New York trust law requires strict compliance with the trust documents; any transaction by the trust that is in contravention to the trust documents is void, meaning that the transfer cannot actually take place as a matter of law [citing relevant provision of NY Estate Powers and Trust Law section]. Therefore, if the transfer of the  notes and mortgages did not comply with the PSA, the transfer would be void, and the assets would not have been transferred to the trust. PSAs generally require that the loans transferred to the trust not be in default, which would prevent the transfer of any non-performing loans to the trust now. Furthermore, PSAs frequently have timeliness requirements regarding the transfer in order to ensure that the trusts qualify for favored tax treatment.”

     This is what we have been arguing for years: that purported transfers of toxic, non-performing mortgage loans into a trust beyond the trust closing date and without strictly complying with the mortgage loan conveyance proviions of the PSA are void and of no force and effect, regardless of who attempts to make the transfer (e.g. MERS, who cannot make the transfer in any event for other reasons). The United States Congress has confirmed this. Perhaps more members of the Judiciary will ultimately come to the same conclusion.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com