December 23, 2010

FDN will be conducting its next series of one-day foreclosure defense seminars in New Jersey and California beginning in January, 2011. The topics to be covered include those previously shown on this website in addition to new case law, limitations on MERS from its own documentation, fraudulent actions of foreclosing parties in securitization cases, and utilization of material information from securitized loan and trust investigations to both advance and defend motions for summary judgment and to facilitate preparation of particularized discovery.

The California seminar is scheduled to be conducted at the Newport Office Center in Newport Beach, California, which was the site of FDN’s November, 2010 seminar. This seminar, which was originally scheduled to take place on January 7, 2011, has been rescheduled to Friday, January 21, 2011 as Mr. Barnes has been ordered to a foreclosure litigation matter in Oregon on January 7.

The New Jersey seminar will be scheduled for either February 1 or 2, 2011. The date will be firmed up following confirmation of a rescheduled court hearing in a New Jersey foreclosure matter. The location is scheduled to be in the Raritan Center area near Edison/New Brunswick, which is easily accessible from Newark and JFK airports and numerous highways in New York, New Jersey, and Pennsylvania.

Registration forms are available upon request by e-mail.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 21, 2010

On this first day of winter, the New Jersey Supreme Court has published and forwarded to members of the New Jersey Bar a series of new rules and regulations requiring foreclosing Plaintiffs and their attorneys to file a series of documents with the courts as to not only new foreclosure filings, but also pending actions where no judgment has been entered and as well in cases where judgment has been entered but no sale has taken place. The rules follow practices in other states such as Florida, where the Supreme Court required all residential foreclosure actions filed as of February 12, 2010 to be verified.

The New Jersey Rules, however, go much farther. To quote the “Notice to the Bar” from the Acting Administrative Director of the Courts in his Notice of December 20, 2010:

             “In light of irregularities in the residential foreclosure practice as reported in sworn deposition testimony in New Jersey and other states, the Court has adopted, on an emergent basis, amendments to Rules 1:5-6, 4:64-1, and 4:64-2. These amendments are effective December 20, 2010.”

             “The rule amendments require plaintiff’s counsel in all residential foreclosure actions to file with the court (a) an affidavit or certification executed by the attorney that the attorney has communicated with an employee or employees of the plaintiff who (a) personally reviewed documents for accuracy and (b) confirmed the accuracy of all court filings in the case to date; (2) the name(s), titles(s), and responsibilities of the employee(s) of the plaintiff who provided this information to the attorney; and (3) an affidavit or certification executed by the attorney that all the filings in the case comport with all requirements of Rule 1:4-8(a).”

      Note that these rules, which came about in part due to the information revealed as to “robo-signers” and other fraudulent documents filed in foreclosure actions, require the identity of the employee(s) of the PLAINTIFF who provided the information. As such, in actions where a securitized trustee bank is the plaintiff, the servicer could arguably not provide the information as the servicer is not the plaintiff. The reverse would be true where the servicer is the plaintiff. 

      The Rules also provide that these documents are required to be filed not only in new foreclosure cases, but in pending actions as well including actions where judgment has already been entered:

       “Plaintiff’s counsel shall file such documents (1) immediately upon the commencement of any new residential foreclosure action filed after the effective date of the new rule and amendments, as to the accuracy of the information contained in the complaint, as set forth in Rule 4:64-1(b)(1) through (13); (2) within 60 days in any residential foreclosure action today pending and awaiting judgment, as to the accuracy of the complaint and of any proofs submitted; (3) within 45 days in any residential foreclosure action in which judgment was entered but no sale of the property has occurred; and (4) with the motion to enter judgment in all future foreclosure actions in which judgment is sought, as to the accuracy of any proofs submitted pursuant to Rule 4:64-2.”

       These sweeping rule changes now force New Jersey foreclosure mills such as Phelan Hallinan & Schmeig and Zucker Goldberg to verify their filings and proofs under oath. As the rule changes also apply to a series of pending, pre-sale foreclosure actions as well, we expect to see borrower challenges to existing foreclosure actions if the required documentation is not filed as required. Further, by forcing the foreclosing Plaintiffs and their law Firms to disclose the identity of representatives, this will streamline discovery including depositions.

      Finally, the Court has also scheduled a hearing for January 19, 2011 at 9:30 a.m. in Trenton at which time certain named foreclosure mills such as Phelan Hallinan and Zucker Goldberg must appear before the court to show cause why the court should not order certain prohibitive actions in foreclosure cases.

      FDN’s New Jersey attorneys will thus be undertaking action in their pending foreclosure cases in connection with these new Rule changes.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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December 17, 2010

FDN is pleased to announce that it has finalized a relationship with Los Angeles, California foreclosure defense litigation counsel Douglas E. Klein, Esq., with offices on Wilshire Boulevard. Mr. Klein has been actively litigating foreclosure defense cases throughout various counties in California including Los Angeles, Orange, San Bernadino, Riverside, and Kern. His experience includes contesting nonjudicial foreclosures and litigating UD actions as well.

We are pleased that Mr. Klein has now become the 32nd law Firm to join the FDN national network. Please e-mail us if you wish to obtain Mr. Klein’s contact information.

Jeff Barnes, Esq., www.ForeclosureDefensenationwide.com

December 14, 2010

An affidavit has been filed in an Alabama foreclosure case of an attorney who actually did the securitization of a securitized mortgage loan trust of which  the Plaintiff in the case is the alleged “trustee”, which affidavit confirms numerous standing issues which we have been arguing for years. The Affidavit of Thomas J. Adams specifically sets forth, by chapter and verse, the various provisions of the PSA which were violated by U.S. Bank and MERS in an attempted assignment of a toxic loan to a securitized mortgage loan trust over a year after the trust closed.

The Affidavit sets forth the limitations, in the PSA, as to what assets the trust can acquire; how the trust can acquire them; and detailing how the post-trust-closing assignment of a toxic loan known to be in default at the time of the purported assignment is violative of the PSA on multiple levels, including destroying the trust’s REMIC status under the IRS rules. The Affidavit also examines the purported transfer of the note by MERS under MERS’ own rules and regulations, and concludes that the purported transfer of the note violates MERS’ own limitations. The Affidavit further sets forth that the PSA requires a clear chain of endorsements of the note all the way to the trust, and highlights that none of the required interim endorsements or a specific endorsement to the trust was ever made.

Thus, this evidence, which cannot be controverted as it is drawn from the very PSA governing the trust of which the foreclosing Plaintiff purports to be the trustee, demostrates that the loan did not, and could not, have ever made it into the trust, and thus the trust’s claiming to have standing to foreclose is essentially a fraud upon the court. Significantly, the opinion by New York Judge Arthur Schack in the matter of Deutsche Bank v. Rolando Campbell, issued in 2008, discussed many of these same issues.

As such, one of the most important steps in defense of foreclosures by banks “as trustee” for a securitized mortgage loan trust claiming to be a proper foreclosing party is a thorough examination of the PSA for the very types of prohibited conduct identified in the Adams affidavit, and filing of the PSA with the Court, if proper, where there is any evidence of post-trust-closing assignment; assignment of a toxic loan to the trust; or a prohibited MERS assignment.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 13, 2010

A Yavapai County, Arizona Court Judge has granted the borrowers’ request for a Temporary Restraining Order cancelling a Trustee’s Sale which was scheduled for December 10, 2010. The papers were prepared by FDN’s Jeff Barnes, Esq. and the TRO obtained by local AZ counsel Gary Doyle, Esq., who is working with Mr. Barnes on cases in the Arizona counties of Maricopa, Yavapai, Pima, and Pinal.

Separately, a sale was cancelled in Colorado following Mr. Barnes’ filing of a Complaint and request for Temporary Restraining Order. Colorado’s Rule 120 procedure is also being challenged in a separate action filed by a Colorado attorney. It is our contention that in light of Colorado Supreme Court law from 1998 which expands the scope of matters to be considered at a Rule 120 hearing that Judges who confine such hearings solely to the issues of the presence of a default and whether the borrower is in the military are not following the mandates of the Colorado Supreme Court, thus denying the borrowers of due process.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 13, 2010

Due to numerous requests, we are cancelling the December 17, 2010 foreclosure defense seminar, as there are apparently Christmas and office parties later this week. Of course, this was not known when we originally scheduled the seminar for 12/17. The next seminar is scheduled for Friday, January 7, 2011.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 6, 2010

Numerous coiunties in Colorado are adopting mandatory electronic filing requirements, not only for existing cases but for newly-filed cases as well. Elbert County adopted this system as of December 1, 2010; other counties already have the same requirement.

FDN’s Jeff Barnes, Esq. has been and continues to defend cases in Colorado, having been licensed in Colorado as of 1990. Mr. Barnes’ office has implemented a scanning system to comply with the new e-filing requirements of Colorado counties.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 6, 2010

(From an article in Daily Finance of 12/02/10 sent to us by one of our readers):

 Three partners of a Pennsylvania foreclosure mill (Goldbeck McCafferty and McKeever) have admitted, under oath, that no attorney ever read or reviewed thousands of foreclosures filed by the Firm, although the filings contained an “attorney” signature and the actions sought and collected “attorneys’ fees” in connection with the foreclosures. The article states that high-ranking Bank of America employees had actual knowledge of this procedure yet continued to reap significant “attorneys’ fees” payments from borrowers in these actions, with this practice being evident through as late as November 24, 2010.

Bank of America is the Goldbeck Firm’s top client. Although other foreclosure clients have stopped doing business with the Goldbeck Firm, B of A continues on, stating only that it is “evaluating its position” with the Firm.

The article goes on to state that literally thousands of Pennsylvania foreclosures are now subject to attack, including demands for return of “attorneys’ fees” paid by borrowers for work by non-lawyers.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 3, 2010

The FDN attorney network continues to expand, with recent additions of law Firms which are now handling foreclosure defense in eastern and western Tennessee, an expanded area in Indiana, and the counties of Maricopa, Yavapai, Pima, and Pinal in Arizona. FDN will also shortly be adding attorneys in the Los Angeles, California area as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

December 2, 2010

A Pennsylvania Superior court, in an appeal from an Order of the Court of Common Pleas of Allegheny County, has reversed a trial court order which denied the borrowers’ motion to set aside a sheriff’s sale and strike a default judgment in favor of Wells Fargo as the trustee of a securitized mortgage loan trust. The case, Wells Fargo Bank N.A. as Trustee for the MLMI Trust Series 2005-FF6 v. Lupori, 2010 PA Super 205 (November 12, 2010) was confined to one issue: that being whether the trial court committed error as a matter of law in denying the borrowers’ motions because the record on the date of judgment lacked any evidence whatsoever to establish that Wells Fargo was the real party in interest and possessed standing to prosecute the foreclosure. The court held that the trial court so erred.

The Court noted that the Complaint alleged an assignment of the mortgage loan from First Franklin to First Franklin Financial Corporation, but made no mention of any other assignment, and nowhere in the Complaint did Wells Fargo identify itself as the owner of the mortgage. In opposing the borrowers’ motions, Wells Fargo asserted that it received an assignment of the Corporation’s rights to the mortgage on April 1, 2005. The Court found, however, that the Complaint did not comply with Rule 1147(a)(1) of the Pennsylvania Rules of Civil Procedure, and that the April 1, 2005 assignment was not in the record at the time of the default judgment, thus warranting reversal of the trial court’s order.

In reversing the trial court’s order, the Court cited to Pennsylvania law which holds that where a defect or irregularity is apparent from the face of the record, the prothonotary will be held to have lacked the authority to enter a default judgment and the default judgment will be considered void.

The Court noted in footnote 2 of its opinion that “The alleged assignment from the Corporation to Wells Fargo predates the assignment from the Bank to the Corporation. Wells Fargo argues on appeal that its assignment from the Corporation was a valid equitable assignment, despite the Corporation’s lack of an interest in the mortgage at the time it purportedly assigned the mortgage to Wells Fargo.” As the Court disposed of the matter on other grounds, the Court stated that “we need not reach this issue”.

We will thus say here what the Court hinted at with its descriptive language but which it declined to reach: the “purported” assignment to Wells Fargo was a fraud, period. It is readily apparent that Wells Fargo dummied up a fraudulent assignment in an attempt to cure the standing issue after the fact. Here, then, is proof positive of fraudulent conduct on the part of Wells Fargo in an attempt to sustain a foreclosure attempt, as we have seen time and time and time again across different jurisdictions in our cases.

We laud the Pennsylvania court for holding Wells Fargo to its burden and exposing this fraud to the public. 

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com