September15, 2010
We are pleased to announce that attorney Mark C. Wilson, Esq. of Overland Park, Kansas has agreed to join the FDN network, making him the 29th member of the network which has now expanded to provide representation of borrowers in Kansas (judicial foreclosure) and Missouri (non-judicial foreclosure).
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
September 15, 2010
Certain circuit courts in Florida are overreacting and improperly reacting to the flood of foreclosure lawsuits filed by the foreclosure mills, and are enacting local court procedures which violate due process, ignore the Florida Rules of Civil Procedure, and are resulting in more improper foreclosures in favor of “lenders”, servicers, and securitized trustee banks. Although the Supreme Court of Florida has endeavored to protect borrowers’ rights through, for example, the requirement that foreclosure complaints be verified, certain of the circuit courts are jettisoning borrowers’ rights with local court procedures which can only be described as abominations and a vicious attack on borrowers.
Miami-Dade County enacted a new procedure for foreclosures in April/May of this year which it calls the “Foreclosure Master Calendar”, whereby Motions for Summary Judgment in residential foreclosure cases and emergency motions to cancel foreclosure sales are no longer being heard by Division Judges and are relegated to the “Master Calendar”. For summary judgment motions, a Plaintiff foreclosing party submits a “summary judgment packet” to the Master Calendar, which is supposed to schedule a hearing and provide notice to counsel. However, in at least one case, the summary judgment was entered with no hearing and no notice to the borrower’s counsel, and the summary judgment motion itself was received by the borrower’s counsel on the same day that the court entered summary judgment. This procedure flies in the face of recent Florida case law which provides that any final order entered without notice is void and subject to being vacated. As such, the Miami-Dade Circuit Court has probably served to further clog its dockets with a deluge of Motions likely be filed by those who never received notice from the “Master Calendar” of a summary judgment motion.
In Broward County, foreclosure hearings are now being conducted in hallways.
In Lee County, Circuit Judges are setting “docket soundings” where a summary judgment motion can be heard, and automatically referring these “docket soundings” to a Magistrate without the consent of the parties. As the Florida Rules of Civil Procedure require that magistrate jurisdiction can only be made if consented to by all parties, the Lee County Courts have thus chosen to ignore the Florida Rules of Civil Procedure, or are hoping that the majority of homeowners are not aware of the constraints on magistrate jurisdiction so that more foreclosures can be railroaded through the system.
These procedures were obviously reactionary; were not well-thought out; and will result in those courts becoming more bogged down as more and more borrowers file motions to advise those courts that they are violating the law. These jurisdictions and others similarly inclined should, for their own benefit, review the mandatory pre-foreclosure proceedings of the 19th Judicial Circuit in Florida (which have been in place for approximately two years), which procedures insure everyone’s rights, diminish discovery disputes in any foreclosure litigation, and streamline foreclosure cases by, for example, requiring the foreclosing party to produce certain documents prior to filing a Complaint for foreclosure.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
The FDN live foreclosure defense seminar series will shortly begin, with the first session being held on Friday, October 1, 2010 in the office complex where Mr. Barnes maintains his Newport Beach, California office. Each session is an entire day (9:00 a.m. to 5:00 p.m.) and will cover many topics in foreclosure defense litigation including analysis of foreclosure documents for defensive and offensive pleading, motions, and discovery; securitization, SBM (successor by merger), and bank acquisition issues; the state of the law as to MERS and MERS-related issues; motion practice; TROs, preliminary injunctions, and declaratory relief actions; forbearance agreements; mediation, and other techniques and strategies for defending foreclosures and assisting clients with mortgage and foreclosure-related issues.
The first seminar series is for attorneys only, with the series being held on the following dates:
Friday, October 1, 2010;
Friday, October 22, 2010
Friday, November 19, 2010
Friday, December 17, 2010
Friday, January 7, 2011
Each hour of the course has been approved for 1.0 CLE hours by The Florida Bar. Each one-day seminar thus nets 7.00 CLE hours for those states which recognize CLE-accredited courses. The seminars are open to attorneys licensed in any jurisdiction.
Registration fee includes breakfast, lunch, afternoon snacks, beverages, and parking at the site. Enrollment for each session is limited to 15 participants. Announcements will be made on this website closing registration for each session as it reaches 15 confirmed enrollees. There is no on-site registration.
Registration forms will be available beginning Monday, September 13, 2010 by e-mail inquiry to [email protected].
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
In a stunning decision, an Iowa District Court Judge has issued a 4 page written opinion vacating a 2005 summary judgment which had been entered against the borrower in favor of Wells Fargo. The decision also vacates a July 7, 2010 Order which reaffirmed the 2005 summary judgment.
The borrower retained Jeff Barnes, Esq. in 2009, who began questioning the decision in view of prior pro se filings of the borrower in which she stated that Wells Fargo had previously told her in 2004 that her loan was owned by Lehman Brothers. The 2005 summary judgment was entered on an Affidavit of a representative of Wells Fargo which stated that the affiant had read the foreclosure petition and motion for summary judgment and that the statements therein were true, one of the statements being that Wells Fargo was in possession of the note.
Shortly after Mr. Barnes was retained, the case was set for trial. Mr. Barnes, together with local Iowa counsel Christine Sand, Esq., propounded discovery upon Wells Fargo, which was not complied with as of the time of the original trial. Wells Fargo’s counsel simply dumped a pile of unsegregated documents on counsel table on the day of trial without even a formal response to the discovery request. To date, the subject discovery (which seeks, in part, the evidence as to ownership of and chain of title to the note and mortgage) has not been fully complied with. The trial was reset to late September, 2010.
On July 21, 2010, Wells Fargo filed a Motion to Substitute Plaintiff in which it stated that “it has been determined upon information and belief that pursuant to a Servicing Agreement between Wells Fargo and Lehman Brothers Bank FSB, an assignment is required and will be executed and recorded. The holder of the note and mortgage is Lehman Brothers Bank FSB.” As those of you who read foreclosure defense websites know, Lehman previously filed for Bankruptcy.
Note that Wells Fargo states that the assignment “will be recorded”. The borrower first challenged Wells Fargo’s ownership of the note in 2004, and now, some time in the future, Wells Fargo is “going to do” an assignment?! Further, it now comes out, in 2010, that what the borrower said in her 2004 pro se filings was 100% correct.
The matter becomes even more complicated and uncertain. The Court’s opinion notes that on August 19, 2010, an affidavit was filed by a representative of Wells Fargo stating that “the original copy of the note has been lost”. In the opinion, the Court states that it premised its [prior] summary judgment ruling on Plaintiff’s possessing the note. The Court then went on to state “The validity of that premise having become increasingly doubtful, and the Plaintiff having chosen to offer nothing as to when Lehman Brothers Bank FSB became the “holder” of the note, when the note was lost, the circumstances surrounding Lehman Brothers Bank FSB becoming the “holder” of the note, or the circumstances surrounding the loss of the note, the orders granting partial summary judgment and reaffirming that judgment should be vacated and the plaintiff should be required to prove its case at trial”.
We characterize this decision as a justice delayed (through no fault of the Court or the borrower) but not denied. We hope that more members of the judiciary scrutinize foreclosures this carefully, and laud this Jurist for his diligence.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
September 7, 2010
A Ventura County, California Judge granted the borrower’s Motion for a Preliminary Injunction today stopping a Trustee’s sale scheduled for this Thursday, September 9, 2010. The borrower is represented by FDN’s Jeff Barnes, Esq. and Kenneth Meyer, Esq., both of whom attended the hearing. Mr. Barnes prepared the papers which were filed with the assistance of Mr. Meyer, who argued the Motion.
The borrower’s Motion highlighted that Wells Fargo had failed to comply with California Civil Code section 2923.5 which requires a foreclosing party to take certain actions prior to instituting foreclosure proceedings. Recent appellate decisional law from California issued in June of this year provides that a borrower has a private right of action for violation of the Code provision, and that noncompliance with the provision warrants the cancellation of a Trustee’s sale until the foreclosing party complies with 2923.5.
Our thanks to Mr. Meyer, Esq. for his diligent efforts in obtaining this result.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
September 1, 2010
In connection with our move to California from Nevada last week, our old internet service provider was not quite candid with us as to their ability to service the area where the new California office is located. As such, those of you who sent e-mail inquiries to us between August 26 and now may have had your e-mail rejected, so we have had to retain technicians to tackle the e-mail problem.
You may want to re-send your inquiry to us by fax at (949) 270-7414 until we are certain that the e-mail issues have been resolved. Please include your e-mail address on any fax inquiry.
In other news, the FDN network will shortly be adding between 5 and 10 additional attorneys in Southern California, and at least five in Illinois to assist borrowers from Chicago northwest to the Rockford area. We will also shortly be adding attorneys in Northern California as well.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
August 25, 2010
As those of you who follow this website know, Mr. Barnes is this week closing his Nevada office and moving it to California. We have already been deluged with new inquiries from California in view of this and the recent Huffington Post article, and we are expanding our attorney base there in order to help foreclosure victims throughout California.
A foreclosure sale was stopped by Court Order in Michigan on Complaint and papers prepared by Jeff Barnes, Esq. A show cause hearing is being scheduled to request that the temporary injunction be made preliminary throughout the duration of the borrower’s challenge to the foreclosure.
FDN has added local counsel number 28 with the addition of Michael Forbes, Esq. in southeastern Pennsylvania. Mr. Forbes has significant litigation experience defending foreclosures and is familiar with the foreclosure “mills” who sue in Pennsylvania.
We have also recently received an inquiry from an attorney in Virginia requesting to join our network.
Further and this week, we have had numerous new inquiries from Arizona, and are expanding our network to cover not only Maricopa and Pima counties, but other counties as well.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
August 20, 2010
MERS is in the spotlight again in view of the recent article in Yes! magazine and the Huffington Post. As those of you who follow the case law and this website know, the overwhelming majority of courts throughout the United States have seen through MERS’ doublespeak in mortgages and Deeds of Trust and have held it to its self-declared status of a nominee only with no ownership interest in the notes and no authority to transfer either the mortgages or notes as it is not and was never a “beneficiary”, especially in view of the admissions of MERS’ own attorneys in the Landmark (Kansas) decision and the MERS contract language where it agrees not to assert any rights to either the loans or properties mortgaged thereby.
Unfortunately, however, some courts still cling hopelessly to an “agency” theory: that the borrower appointed MERS as its agent and that “the debt follows the mortgage”. If these courts really read the law, they would see that they have it backwards and that the “agency” theory cannot make MERS something it is not. The Vermont decision surgically dissected the MERS anomaly and set the record straight.
The note is the obligation. The mortgage or Deed of Trust secures repayment of the note, and you cannot sue solely on a mortgage instrument. It is a collateral security instrument which has no enforcement power absent a concomitant debt (the Note). As such, in order to transfer the instrument securing repayment of the obligation, you need to own the obligation. This law is so clear on this point that it is a wonder that some courts have gone out of their way to either ignore it or pervert it.
Thankfully, the trend continues to be that MERS is nothing more than an entity to electronically track mortgages and that it is not a “beneficiary”, “agent”, “mortgagee”, etc. We hope that courts who will be addressing the MERS issues will follow the law and hold MERS to what itself chose to be: “solely a nominee”.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
FDN’s Jeff Barnes, Esq. has been quoted in the Huffington Post which republished an article from Yes! magazine concerning foreclosure defense and the effect of a recent California Bankruptcy Court ruling on foreclosure cases in California, the quote having been part of an article previously published by Mr. Barnes on this website. The article was brought to our attention today by several of our dedicated readers.
Separately, Mr. Barnes’ Las Vegas, Nevada office will be closing permanently on Wednesday, August 25, 2010 to be replaced by his new California office located at 2901 West Coast Highway, Suites 360 and 361 (mailing address: Suite 350), Newport Beach, California which will be up and running on Monday, August 30, 2010 after Mr. Barnes and his family relocate to California. Mr. Barnes will continue to maintain the Boca Raton, Florida office. E-mail addresses will remain the same. The new telephone and fax numbers for the California office will be provided by e-mail upon request.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
August 19, 2010
During the course of nine separate court hearings in southwest Florida today, a Judge dismissed two foreclosure cases on motion of Jeff Barnes, Esq. for failure of the Plaintiff to link up assignments of the loan from the original lender to the Plaintiff in the Plaintiff’s pleadings, notwithstanding that post-filing assignments had been either filed or served in partial response to discovery. These rulings reflect a change from prior court rulings, where judges had permitted non-original lender Plaintiffs to generally plead that they owned and held the note and mortgage but had not explained how they came into ownership thereof in the allegations of the Complaint.
The effect of these rulings is to now force foreclosing Plaintiffs to give notice to borrowers up front, in the Complaint, as to how the Plaintiff (allegedly) acquired its interest in the mortgage and note, which will have the practical effect of streamlining defensive pleadings and narrowing discovery, and will not allow foreclosing non-original lender Plaintiffs to obscure material chain-of-title issues and blindside borrowers on summary judgment motions where alleged proof of chain of title is introduced for the first time.
The Judge also, in separate hearings, ordered foreclosing Plaintiffs to provide substantive responses to Mr. Barnes’ discovery requests after the Plaintiffs filed blanket objections in one case and open-ended Motions for more time to respond to the discovery (that being a Motion which does not request any specific amount of additional time to respond) in 2 other cases. Blanket objections to all discovery requests and open-ended Motions for more time which the moving Plaintiff does not even set for hearing are a common practice of foreclosure mills which are used to delay or hamstring discovery. The really arrogant mills then file a Motion for Summary Judgment while simultaneously refusing to provide responses to borrower discovery, necessitating additional hearings to reschedule the summary judgment hearing, motions to compel discovery, etc.
Jeff Barnes, Esq., www/ForeclosureDefenseNationwide.com