February 15, 2011

FDN attorneys Jeff Barnes, Esq. and Ronald Grant, Esq. have successfully stopped a foreclosure sale in Hawai’i, obtaining a temporary restraining order against the sale with the order being continued for a period of months. The case now proceeds to discovery. Papers were drafted by Mr. Barnes and court action was undertaken by Mr. Grant. Mr. Barnes will be applying for admission to the Hawai’i court pro hac vice.

Separately, attorneys have filed a Petition in the United States Supreme Court to challenge the constitutionality of Hawai’i’s nonjudicial foreclosure scheme, which is based on laws enacted in 1874. The scheme is being criticized as not providing proper due process for borrowers to challenge a nonjudicial foreclosure.

In our view, similar challenges should be mounted in all of the nonjudicial states. The nonjudicial foreclosure procedures, when enacted, never could have contemplated or imagined and are thus not designed to handle complicated legal and factual foreclosure issues such as securitization and MERS. Part of the problem lies with the fact that most of the trust deed acts define “beneficiary” as the party for whose benefit the deed of trust is given (that being the party which was the real lender), yet some courts have nonetheless permitted MERS to be the “beneficiary” despite the undisputed fact that MERS never lent any money or extended any credit.

This unsettled nature of this area of the law was just highlighted again in the February 11, 2011 decision from the United States Bankruptcy Court for the Southern District of New York in the matter of In Re Agard, Case No. 810-77338-reg, where the Court derailed MERS’ purported authority to transfer anything and held that MERS’ “nominee” status “and the rights bestowed upon MERS within the mortgage itself are insufficient to empower MERS to effectuate a valid assignment of mortgage”. The court cited many recent NY decisions which are in accord, as well as the Kansas and Arkansas cases we which have repeatedly discussed on this website.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 15, 2011

FDN’s Foreclosure Defense Seminar which was scheduled for Friday, February 25, 2011 is being rescheduled as Mr. Barnes has been called to a court hearing in a foreclosure defense case in Indiana for that date.

The new date will be a Friday in March. We will update as soon as the date is confirmed.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 11, 2011

In a stinging 3-page Order, a Miami-Dade County, Florida Circuit Court Judge has dismissed a foreclosure with prejudice after finding that the Plaintiff’s Firm, known foreclosure mill Ben-Ezra & Katz, P.A., filed an Assignment of Mortgage with the Court which the Court found to be “a complete sham” and “fraudulent”. The assignment was found to have not been properly executed as it was “signed” on January 6, 2008 but “notarized” over a year later on January 20, 2009 with a crossed-out Notary and attaching a “California All-Purpose Acknowledgement” dated in 2009. The Court held that “the filing of this document is also a Fraud upon the Court.”

The Court further found that the filing of an “Original Note and Original Mortgage” months after the Plaintiff represented to the Court in its Complaint that the original Note and Mortgage had been lost was “in and of itself a Fraud Upon the Court.” The Court noted more significantly: “However, this pales in comparison to the subsequent outright fraud presented to the Court in order to pursue a foreclosure action against the Defendant and mislead the Court to obtain the entry of Final Judgment.” What occurred was that the “original” note and mortgage filed by Ben-Ezra & Katz and certified to be the originals thereof actually belonged to another person with another property, and had nothing to do with the pending case.

The final judgment which had been entered against the borrower was vacated by the Court “for Fraud” under Florida’s post-judgment relief rule.

The Order further commanded the owners of the Ben-Ezra & Katz Firm to appear before the Court to explain why they should not be held in contempt for not only failing to appear for a duly noticed hearing, but also for “Presenting false pleadings, misleading the Court, and wasting the Court’s time”.

Kudos to this court for making public the absolute fraudulent conduct of this known foreclosure mill, which we have also litigated against and continue to litigate against.

We publish this decision not only for its substance, but in view of the fact that the Ben-Ezra & Katz Firm is currently in the process of taking over foreclosure matters once handled by the now infamous Law Offices of David J. Stern, which was terminated by many of its clients after having been found by the Florida Attorney General to have committed a litany of fraudulent acts in foreclosure actions. Guess the clients who fired Stern wanted a Firm just as unscrupulous as the one they discharged.

The significance of this opinion is that it was rendered on the borrower’s Motion to vacate a prior judgment. If Ben Ezra & Katz engaged in such blatent fraud in one case, chances are that they probably did it more than once, so borrowers who were foreclosed on by Ben-Ezra & Katz should carefully examine their case for possible relief from any judgment. We here will be doing so, for sure.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 11, 2011

Final registration for FDN’s Foreclosure Defense Seminar scheduled for Friday, February 25, 2011 in Edison, New Jersey will close as of Friday, February 18, 2011, one week from today, as the facility needs a firm count for catering purposes and FDN needs a firm count for preparation of the Handbooks for the seminar. Registration Forms are available by e-mail request to [email protected].

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

February 11, 2011

The Appellate Division of the Superior Court of New Jersey has issued a 13-page written opinion in the matter of Wells Fargo Bank, N.A. v. Ford, Docket No. A-3627-06T1 (approved for publication January 28, 2011) which reversed a summary judgment in favor of Wells Fargo, finding that Wells Fargo had failed to establish standing. The opinion is significant for many reasons, among them being that any attempt by Wells Fargo to satisfy standing as a “holder” of the note upon remand would defeat any “holder in due course” status.

The original Note was in favor of Argent Mortgage Company, well known to have sold off its loans into securitizations. In its Complaint, Wells Fargo claimed to have been assigned the mortgage and note but that the assignment had not yet been recorded. The borrower defended with counterclaims and questioned the validity of the purported assignment.

Wells Fargo moved for summary judgment, submitting a certification from a person who identified himself as a “Supervisor of Fidelity National as an attorney in fact for HomeEq Servicing Corporation as attorney in fact for Wells Fargo”. Although the certification alleged knowledge of the amount due; that Wells Fargo was a holder and owner of the note and mortgage; and that the copies thereof were “true copies”, the Court noted that the certification did not indicate the source of this purported knowledge. Wells Fargo also relied upon an “Assignment of Mortgage” which the Court noted was not authenticated in any manner.

The Court concluded that Wells Fargo failed to establish its standing to pursue the foreclosure action and reversed the summary judgment, holding that the documents that Wells Fargo relied upon in support of its motion for summary judgment were not properly authenticated and that the certification was not based on personal knowledge as to the alleged “holder and owner” allegations, or how the person who signed the certification obtained his alleged knowledge. The Court also held that the purported assignment of the mortgage, which must be produced in New Jersey to maintain a foreclosure action (citing New Jersey statute), should not have been considered by the trial court as it was not authenticated by an affidavit or certification based on personal knowledge.

Significantly, the Court also noted that even if Wells Fargo could, on remand, establish its standing as a holder of the note through an indorsement from Argent “at this late date”, Wells Fargo would not thereby become a holder in due course that could avoid whatever defenses the borrower would have to a claim by Argent because Wells Fargo is now aware of these defenses.

The significance of this opinion; the new foreclosure rules recently implemented in New Jersey; and other court rulings in New Jersey including the discovery and dismissal rulings obtained by FDN attorneys Jeff Barnes, Esq. and Michael Jacobson, Esq. in several New Jersey foreclosure actions, will be discussed at the upcoming foreclosure defense seminar which is scheduled for Friday, February 25, 2011 in Edison, New Jersey. Registration forms for this seminar are available upon request by e-mail.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com 

January 27, 2011

The tide is finally, after years of struggle, starting to turn, at least in some jurisdictions. As most of you know from the web this week, MERS’ President and CEO R.K. Arnold has resigned. MERS is under attack from all directions, and a securitized trustee bank’s attorney actually admitted in a hearing yesterday that “MERS is nothing but an electronic tracking system”.

In securitization cases, discovery of documents such as the prospectus, the Pooling and Servicing Agreement, and documents as to alleged authorization of MERS to transfer mortgage loan documents is essential to defending a foreclosure attempt. For years, attorneys for the banks, servicers, and “trustees” argued that such discovery (much of which is required to be filed with the Securities and Exchange Commission) was irrelevant, overbroad, and invaded the “privacy” of the bank’s business. These objections are finally starting to be overruled nationwide following the In Re Weisband decision from the Arizona Bankruptcy court, which denied relief from stay as the foreclosing party seeking stay relief “failed to connect the dots”, failing to demonstrate that the servicer had the right to seek stay relief to foreclose on a loan which was purportedly assigned to a securitized mortgage loan trust as the evidence showed the loan never made it into the trust.

This month, FDN attorneys have been successful in both Oregon and New Jersey in compelling, by court Order and over objection of the “bank’s” attorneys, the production of PSAs, trust formation documents, trust prospectuses, and documents as to the alleged authority of MERS. FDN attorneys Jeff Barnes, Esq. and Philip Anderson, Esq. in Oregon, and Jeff Barnes, Esq. and Michael Jacobson, Esq. in New Jersey, have obtained court rulings compelling this critical discovery. In other cases where Mr. Barnes was able to obtain this discovery by court order, it has been revealed that the purported assignment to a trust years after the trust closed violated the very requirements of Mortgage Loan Conveyance provisions of the PSA. Thus and in conformity with Weisband, the loan never made it into the trust. The resultant lack of standing, lack of chain of title, and lack of real party in interest issues are scheduled to be argued by Mr. Barnes before various courts in February, and a trustee in a bankruptcy case in Mississippi has filed an adversary proceeding based on evidence that the purported assignment of the loan, which was done years after the trust closed, was ineffective as it violated the restrictions of the PSA.

Mr. Barnes and Mr. Jacobson have a history of obtaining court orders compelling this discovery in cases in New Jersey, with the cases having ultimately been dismissed when the foreclosing Plaintiff failed to comply with the Court’s Orders to produce the subject discovery.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 24, 2011

We have received several accolades from attendees of the foreclosure defense seminar which was held in our Newport Beach, California offices last Friday, January 21, 2011, as well as requests already for the date of the next seminar in California, which is planned to be held sometime in the latter part of March.

We have also obtained a new date for our foreclosure defense seminar to be conducted in New Jersey. It will be held on Friday, February 25, 2011 at the Holiday Inn located at 3050 Woodbridge Avenue, Edison, New Jersey 08837. The seminar will run all day from 9:00 a.m. to 5:00 p.m. with one hour for lunch, and will cover the following topic areas, each of which has been designated to have 1.00 hours of General CLE:

     (a)  Identifying Preliminary Defenses (including case screening and initial strategies)

     (b)  MERS and MERS assignments

     (c)  Securitization, Insurances, and Credit Enhancements

     (d)  Discovery (including handling Objections)

    (e)  Filing and Defending Dispositive Motions (Motions to Dismiss and for Summary Judgment)

   (f)  Temporary Forebearance Agreements, Loan Modifications, and Settlements

     (g)  Bankruptcy issues; appeals, eviction proceedings

The cost of the seminar is $695.00 and includes breakfast and lunch buffets and drinks and a Handbook complete with forms for pleadings, motions, discovery, and case screening, as well as case law and court rulings. Discounted rooms are available for $89.00 per night for seminar attendees for Thursday, February 24, 2011. Further information as to directions and room reservations may be had by calling (732) 638-0003.

The seminar will be limited to twenty (20) participants. COMPLETED REGISTRATION FORMS AND PAYMENT MUST BE RECEIVED BY NO LATER THAN FRIDAY, FEBRUARY 18, 2011 as we must have a firm count for the Handbooks and meals. THERE WILL BE NO ON-SITE REGISTRATION AND NO “WALK-INS” PERMITTED.

Registration forms are available by e-mailing us here or by e-mail to [email protected]. Cancellation policies are on the Registration Form.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 20, 2011

FDN’s foreclosure defense seminar scheduled to be held on February 2, 2011 in Raritan Center, New Jersey is being rescheduled due to a number of concerns from interested attorneys and paralegals that the seminar, which is currently scheduled for mid-week, would be difficult on their schedules. We have been requested to reschedule the seminar to a Friday.

We are thus notifying everyone that there will be no seminar on February 2, 2011 in New Jersey, and that this all-day seminar will be rescheduled for a Friday in either late February or early March, 2011. The new date and particulars as to discounted hotel rates, time, and program will be posted on this website in the near future.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 17, 2011

A Utah court has granted a borrower’s quiet title action against the original lenders and the original trustees named in the Deeds of Trust, even though MERS was identified in the Deeds of Trust. The attorney for the borrowers took the position that MERS did not have to be named in the action or served with court papers as it was not, and could not be, the beneficiary under the Deed of Trust and as it did not lend money. The Defendants failed to respond to the action, thus paving the way for a Default Judgment in favor of the borrower.

Based on this result, there is a planned challenge to an earlier Utah Federal court ruling in favor of MERS.

The line of reasoning in this case is similar to that set forth in numerous rulings from other jurisdictions including recent decisions in Oregon which have stated that MERS cannot be the “beneficiary” under the Oregon Trust Deed Act. Although more and more states are adopting this rationale, there are still a few holdouts, most notably Arizona, which continues to cling to the “MERS as agent” theory which has been rejected by numerous courts across the nation on many grounds, including the fact that MERS and the lender intentionally chose the word “nominee” to designate MERS, and not “agent” or “power of attorney”.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 12, 2011

Per our previous announcement, FDN has scheduled two (2) all-day foreclosure defense seminars: the first in Newport Beach, California on Friday, January 21, 2011, and the second in the Raritan Center, New Jersey area during the first part of February.  The date will be either February 1 or 2, as we are awaiting information from a court as to a hearing on one of those days. We have received many requests for registration since the holidays ended.

The seminar has been accredited by The Florida Bar for seven (7) General CLE hours. CLE credits in a CLE state are generally applicable to other states which have CLE requirements. Attorneys should check with their state Bar as to CLE reciprocity.

The scheduled topic areas to be covered are:

   (a)  Identifying Preliminary Issues and Defenses

   (b)  Securitization, Mortgage Loan Conveyance Requirements in Pooling and Servicing Agreements, and Governing Documents as to servicers

   (c)  MERS, including MERS contracts, limitations, and case law

   (d)  Discovery

  (e)  Filing and Defending Dispositive Motions and defending Motions to Dismiss

   (f)  Temporary Forbearance and Loan Modification Agreements; Mediation and settlement

   (g)  Bankruptcy issues; Defending Eviction, FED, and UD actions.

The seminars are for attorneys and paralegals only. Registration forms are available by e-mail request.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com