September 8, 2017

This post has nothing to do with foreclosure, but with what could happen in Florida as a result of Hurricane Irma. I know: I have been through nine (9) hurricanes in my 38 years of living in Florida, including Hurricane Wilma, the eye of which passed right over my home in Boca Raton at the time and which devastated Boca Raton back in 2005. Wilma was a strong Category 3 (Irma is a Cat 4 or 5, depending on the hour and location), and was much smaller than Irma, which is larger in size than the entire state of Florida (that being over 400 miles from one side to the other).

What those who have never been through a hurricane don’t realize is that it is not just the storm itself, but the aftermath. Yes, the storm is terrifying (winds louder than a freight train for hours on end, windows being blown out, roofs being ripped off houses, roof tiles being hurtled through the air at over 100 mph, flooding, etc.), but what happens following the storm is never revealed in the news.

You can lose electricity for weeks. That means no air conditioning; all of your food goes bad and has to be thrown out; you cannot use your pool (if you have one); and everything is pitch black at night, with no streetlights, traffic lights, or otherwise. There are curfews as well, and looting and break-ins are very common as there is no light and the law enforcement agencies are overburdened.

The garbage (including the refrigerator(s) and freezer(s) of food you have to throw out) piles up as the waste companies are overburdened, and if the roads are blocked by fallen trees (as many of them in Boca Raton were after Wilma), they cannot even get through for days on end. That means that the garbage sits in the 90+ degree heat and humidity during the day, and is attacked by raccoons, rats, and stray animals at night. The garbage is then out in the street, festering in the heat, bringing “rot worms” and other pests.

Two days after the rain stops, mosquito eggs begin hatching, so literally thousands of mosquitos fill the air. Flies surround the rotting garbage. Cockroaches are everywhere due to all of the waste. Snakes come out of the woods to feed as well.

In Boca Raton after Wilma, both the entrance and exit to numerous neighborhoods were blocked by fallen banyan trees (which have shallow but outward root systems, and are easily toppled by high winds). Residents had to walk or hitchike to Home Depot to buy chain saws, then spend days cutting up the fallen trees just to be able to drive out of the neighborhood.

There is no food in the stores and no gas in the gas stations. It can take days for trucks to deliver groceries, water, and gas. You live on dry goods (crackers, cookies) and cold canned goods.

No air moves in your home. It is stifling, humid, and takes all of the energy out of you.

To take a “shower”, you have to heat up a pot of water on the grill and pour one coffee cup or pitcher of water over yourself at a time (assuming you have a grill, which many people do not have).

With no electricity and probably no internet (and with the cell towers and lines being generally downed), there is no computer or cell phone access.

The point of this post is to let those of you out there know that the effects of a hurricane are not over once the storm passes, and that the worst is the aftermath. This is when the victims need the most help, and we implore everyone to be aware of this and help in whatever way you can. This is going to be a statewide disaster for Florida the likes of which have never occurred before.

We thank you in advance for any help you can give, and pray for everyone in the path of this horrible storm.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 7, 2017

The Barnes law Firm has been retained in a foreclosure action in New York involving eleven (11) Assignments of Mortgage ranging from 2008 to 2017 and involving multiple LLC entities, several of which are the subject of other foreclosure litigation being defended by Mr. Barnes. This is the first such case that we have seen involving that number of assignments.

In another unique case, Mr. Barnes has also been retained in a foreclosure case in New Jersey where the action was dismissed in 2014 for lack of prosecution; reinstated three (3) separate times with Court-imposed deadlines for filings by the Plaintiff; and where the Plaintiff never undertook any action during any of the three (3) permitted reinstatement periods. Despite these record facts, the Court entered Final Judgment in favor of the Plaintiff in August, 2017 although at the time, the action had not been reinstated and there was no Order extending the expired third reinstatement period. The case involves a WaMu origination and an original filing by JPMorgan Chase, which claimed to have inherited the loan as a part of the Purchase & Assumption Agreement with the FDIC (which agreement was not finalized as of the time that JPM originally filed the action).The homeowner, who was pro se, is seeking to vacate the Final Judgment on numerous grounds.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 25, 2017

A foreclosure sale was stopped and two Motions for Summary Judgment were withdrawn by the foreclosing parties in two states within three days this week. Jeff Barnes, Esq. represents the homeowners in all three cases as lead counsel.

The foreclosure sale was stopped in Sevier County, Tennessee and involves America’s Wholesale Lender as the alleged “originator” of the loan, Bank of New York as the claimed “trustee” of a CWALT securitization trust, and Shellpoint as the servicer. Mr. Barnes prepared the Complaint, Motion for TRO and Preliminary Injunction, and Memorandum of Law. He is assisted by local counsel (and Tennessee state representative) Andrew Farmer, Esq. The Court entered the TRO on the papers without a hearing.

The second case is pending in Williamson County, Tennessee, and involves America’s Wholesale Lender, Bank of New York Mellon as successor Trustee to JPMorgan Chase as the claimed “trustee” of a SAMI II (Structured Asset Mortgage Investment) securitization Trust, and Nationstar as the servicer. Mr. Barnes prepared and filed the opposition papers to BNY’s Motion for Summary Judgment. BNY withdrew the MSJ after receipt of the Opposition papers. Mr. Barnes is working with local TN counsel John Higgins, Esq. on this case.

The third case is pending in Oklahoma City, OK and involves an entity which denominates itself “Syncretic Financial”. The underlying loan was allegedly securitized through Wells Fargo as the claimed “trustee” for a Stanwich Trust. The hearing on Syncretic’s Motion for Summary Judgment was cancelled by Syncretic after receipt of the opposition papers, which were prepared by Mr. Barnes. He is assisted by local Oklahoma counsel Scott Harris, Esq.

Jeff Barnes, Esq., www.ForeclosureDefensenationwide.com

August 22, 2017

In response to numerous requests, we are planning our next free one hour foreclosure seminar for mid-September, 2017, to be held in Brooklyn, New York. The conference room location will be announced in a later post, as we are currently reviewing various facilities to try to secure a location with close access to public transportation and with adequate parking.

There will be a 30-minute Q&A following the seminar. Anyone is welcome to attend.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 9, 2017

We previously posted that we are holding a free foreclosure defense seminar which had been scheduled for Friday, Aug. 18, 2017.

The seminar has been rescheduled to Thursday, August 17, 2017 beginning at 3:30 p.m. and will be held at 745 5th Avenue, 5th Floor, New York, New York (which is just south of the east side of the intersection of East 58th Street and 5th Avenue; Bergdorf Goodman is to the left at the ground floor of the building). A one-hour presentation will be made followed by a 30-minute Q&A.

The seminar is open to anyone.

The rescheduling is due to a recent Judge’s Order which changed the hearing date on a motion in a case in Florida, which hearing Mr. Barnes must attend on August 18, 2017.

Materials will be provided at the seminar. Please e-mail us by no later than next Tuesday, Aug. 15 if you plan to attend, as we need to make sure that we have the appropriate number of copies of materials to be distributed.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 7, 2017

Today, a Hamilton County, Tennessee (Chattanooga) Circuit Judge granted the homeowner’s sworn motion to vacate a Final Judgment of foreclosure and to stay eviction proceedings. For those of you who follow this website, this is the same case where in March of 2016 the same Court denied FNMA’s Motion for Summary Judgment in an FED (eviction) case. (See post of March 15, 2016 in archives section of this website, to the right of this post).

The homeowner is represented by Jeff Barnes, Esq. and local TN counsel Fred Clelland, Esq. Mr. Barnes, who is admitted PHV in the case, prepared the Sworn Motion on an expedited basis, as the homeowner just discovered that she was about to be evicted by a notice posted on the door of her residence and without any prior notice that the case had progressed since the March, 2016 summary judgment hearing.

After the motion for summary judgment was denied, FNMA changed attorneys. Despite the record fact that Mr. Barnes and Mr. Clelland were of record as representing the homeowner, FNMA’s new attorneys failed to inform either attorney that it was proceeding forward, and obtained a Final Judgment without any notice to the homeowner or either of her counsel.

Tennessee law supports due process and notice to a litigant concerning critical steps in court proceedings. A final judgment entered without notice constitutes reversible error, which law was cited by Mr. Barnes in the homeowner’s sworn Motion to Vacate and Stay.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

July 26, 2017

This morning, a Pierce County, Washington Superior Court Judge granted the homeowners’ Emergency Motion to enjoin a Trustee’s (foreclosure) sale which was scheduled for July 28, 2017 in a case where the alleged original lender is America’s Wholesale Lender (AWL). The homeowners are represented by Jeff Barnes, Esq. and local Washington counsel James A. Wexler, Esq. Mr. Barnes prepared the Complaint, Emergency Motion, and supporting papers and argued the matter in the Pierce County Courthouse this morning after the Judge granted Mr. Barnes’ application for admission pro hac vice.

The Complaint alleges several causes of action grounded upon, among other things, that AWL never existed and that the claimed “endorsement” stamp on the Note is of no effect as it was not executed by the original named lender but only by Countrywide Home Loans, Inc. d/b/a AWL, and not AWL, the “New York corporation” identified in the Note and Deed of Trust as the “Lender”. The Complaint also includes the argument which Mr. Barnes successfully advanced in Portland, Oregon last Friday, July 21, 2017 (see separate post below) that the residential mortgage loan contract was unilaterally modified by the securitization trust without notice to or consent of the borrowers.

As there is no case law in Washington on these issues, the case is one of first impression in Washington. The Judge agreed and so stated on the record, also stating that the matter is not one for summary judgment and that the issues need to advance to and be resolved at trial.

Jeff Barnes, Esq., www/ForeclosureDefenseNationwide.com

July 21, 2017

This afternoon, a Multnomah County (Portland) Oregon Judge denied a Motion to Dismiss the homeowners’ Counterclaim (to a judicial foreclosure action) for Declaratory Relief in connection with what the homeowners have claimed to be an illegal unilateral modification of a mortgage loan contract by the downline alleged “successor” to the Note and Deed of Trust. The homeowners are represented by Jeff Barnes, Esq. together with local Oregon counsel Elizabeth Lemoine, Esq. As those of you who historically follow this website may be aware, Mr. Barnes and Mrs. Lemoine were the attorneys who prevailed n the Niday v. GMAC case in both the Oregon Court of Appeals and the Supreme Court of Oregon, which decisions established that MERS is not the beneficiary of a Deed of Trust despite claiming to be so.

The foreclosing Plaintiff is an entity which styles itself Wilmington Savings Fund Society as the (alleged) “trustee” of a securitized mortgage loan trust. The case involves a defunct original lender and multiple “Allonges” which are undated and unauthenticated.

The homeowners have alleged that as a result of the loan being securitized that numerous rights were lost which was not disclosed to the homeowners notwithstanding the “your loan may be sold” language in the mortgage loan documents, which the homeowners have contended is an incomplete and misleading disclosure. The homeowners have also taken the position that Wilmington’s “sale” of the loan to an unregulated commercial investment entity with the concomitant loss of rights and protections afforded to residential mortgage loans issued by Federally-regulated mortgage lenders resulted in the unilateral modification of the mortgage loan contract . As in all states, unilateral modification of contracts, without consent and any required additional consideration for the modification, is illegal.

Mr. Barnes is advancing this claim in several states, including Oregon, Florida, New York, and Tennessee. There is currently no case law on the issues or as to this particular claim, so the issues are not precluded by any existing law and are ripe for advancement.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

July 17, 2017

FDN’s New York foreclosure defense team will be giving a free, 90-minute seminar on Friday, August 18, 2017 at 745 5th Avenue, 5th Floor, from 3:00 p.m. to 4:30 p.m., and holding an open Q&A from 4:30 p.m. to 5:00 p.m. following the seminar. Written materials will be provided to all who register in advance.

Advance registration is required so that we may secure the proper number of seats and packages of written materials for distribution at the seminar.You may register by contacting William Younghans via e-mail at [email protected], or Mr. Barnes’ office by e-mailing to [email protected].

There is no fee for registration or attendance. The seminar is open to homeowners and paralegals. We will have more information as August 18 approaches.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

July 7, 2017

A Colorado County Court Judge has granted the homeowner’s motions for reconsideration and to transfer an eviction case from County Court to the District Court to be consolidated with an action which was filed before the eviction case was filed. Jeff Barnes, Esq. represents the homeowners. Mr. Barnes had filed an independent action under CRCP 60(b) seeking the vacatur of an Order dismissing the homeowners’ previously filed challenge to the foreclosure. The 60(b) action was pending in the District Court when the foreclosing party filed an “FED” (forcible entry and detainer, a/k/a eviction) action in County Court, as the County Court generally has jurisdiction over FED actions.

Mr. Barnes argued at the FED trial that the County Court had no jurisdiction to proceed given that the homeowners had raised defenses to the foreclosing party’s claim of title to the property, which issues are outside of the County Court’s jurisdiction. The Judge who conducted the trial disagreed and proceeded, but advised that a Motion for Reconsideration would be reviewed if filed.

Although there is no requirement to file a Motion to Transfer an FED case to the District Court under this procedural situation, Mr. Barnes filed such a Motion and a Motion for Reconsideration of the trial Judge’s decision to proceed with the FED action. The presiding Judge in the FED action granted both of Mr. Barnes’ Motions, finding that the County Court had no jurisdiction to continue with the FED trial (which was held on June 28, 2017), and transferred the FED action to the District Court to be consolidated with the previously filed District Court case.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com