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.,



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.,


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.,


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.,


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.,



January 5, 2011

We first hope that all of you had a happy New Year’s Eve.

After a brief lull at year-end, a multitude of information is emerging which indicates that 2011 looks to be the year that the tide turns for borrowers and against lenders, servicers, and securitized trustee banks. As this is being written, borrower lawsuits are being prepared sounding in fraud, conspiracy to defraud, conversion, and other causes of action. FDN’s loan and securitized mortgage loan trust investigators have unconvered volumes of fraud in securitizations within the last month alone, which is being brought to the attention of the courts by FDN attorneys.

As the year closed, we were advised that Chase filed a Motion, in litigation instituted against it by Deutsche Bank, that it did NOT acquire mortgage loans or other liabilities in connection with its acquisition of assets from Washington Mutual, which acquisition is not yet even completed. if what Chase is now admitting is the truth, Chase has committed massive fraud in thousands of foreclosure actions across the country where it claimed that it had standing to foreclose as having allegedly acquired “the assets of Washington Mutual from the FDIC receiver”. We are examining each of our Chase/WaMu cases in light of this revelation and will be filing appropriate claims for relief.

It is also practically common knowledge that the foreclosure mills have been and continue to engage in massive fraud, with forged documents, backdated notaries, fraudulent affidavits, and other infirmities, many of which are actually documented on a recent posting by the Florida Attorney General’s office. The posting is almost comedic, with numerous signatures of the same person claiming to be an officer of numerous entities being totally different, notaries being forged, and in certain instances, assignments being made to an entity denominated as “bogus”. Despite being under investigation by state Attorneys General, these foreclosure mills continue with their rampant misdeeds, more and more of which are being exposed almost daily.

In view of what is finally being brought to light (and which we have been bringing to the attention of courts across the country for years), borrowers are fighting back. Lawsuits are being filed against the foreclosure mills and their “clients” for damages. A recent appellate court ruling in Florida has permitted a class action lawsuit to proceed against the Law Offices of David J. Stern. With the revelations being made by the various investigations, we anticipate that there will be a flood of borrower lawsuits in 2011.

This may be one reason why FDN has been receiving many requests for seminar registration information this week alone for the California seminar scheduled for January 21 and the Raritan Center, New Jersey seminar scheduled for early February.

Jeff Barnes, Esq.,