September 30, 2011

A Tennessee Federal Judge has issued an Order denying Defendant Bank of America’s “Motion to Reconsider” the Court’s prior Order which denied B of A’s Motion to Dismiss the homeowner’s Complaint for declaratory relief. The homeowner had originally sued B of A in state court claiming that B of A had no interest in either the Note or the Deed of Trust. B of A removed the case to Federal Court and filed a Motion to Dismiss, which the Court denied upon finding that the Court could not find, as a matter of law, whether B of A had legal or equitable rights in either the Note or the Deed of Trust, and could not do so on a Motion to Dismiss.

B of A filed a “Motion to Reconsider”, citing hearsay material about “public knowledge” of B of A’s acquisition of Countrywide, etc., and essentially re-argued the same matters in its Motion to Dismiss. The “Motion to Reconsider” was not grounded upon any of the factors cited in case law set forth by B of A within its own Motion. The Court denied the “Motion to Reconsider”, setting forth its reasoning from its prior Order. Apparently, B of A did not understand the Court the first time.

The homeowner is represented by Jeff Barnes, Esq. and local Tennessee counsel John Higgins, Esq. Mr. Barnes is admitted pro hac vice in the case and researched and prepared both the Response to the Motion to Dismiss and the Response to the “Motion to Reconsider”.

Separately, FDN Maui, Hawai’i counsel James Fosbinder, Esq. has successfully opposed a Motion for Summary Judgment filed by the bank against the homeowner. The same Court has jurisdiction over this case and another case where Mr. Fosbinder represents the homeowner. At a hearing last Friday, the Court cautioned the bank’s counsel in the second case that the issues “are the same issues” as in the case where the Court already denied the bank’s summary judgment motion.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 22, 2011

Our offices will be closed on Thursday, September 29, 2011 in observance of Rosh Hashana. We wish everyone a happy, healthy, and prosperous New Year.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 21, 2011

We recently predicted that the David Stern debacle, which left over 100,000 Florida foreclosure cases in limbo, would soon result in significant re-filings of these foreclosure cases by other law Firms which have and are being retained by the former Stern clients. This is exactly what has happened and is happening now.

Since our article was published, we have received a slew of inquiries from Florida homeowners whose cases, which had originally been filed by the Stern Firm and had been previously dismissed, are now being re-filed by other other law Firms. The Plaintiff in most of these re-filed cases is the alleged “trustee” of a securitized mortgage loan trust. As most of the cases were dismissed on procedural grounds (e.g. lack of record activity in the case or failure of a Stern attorney to appear for a court status conference), the dismissals were “without prejudice”, meaning that the cases can be re-filed under Florida law.

Separately, actions have been instituted in New York and Nevada alleging that Countrywide did not actually deposit mortgage loans into securitized trust pools, and thus Countrywide had no legal authority to seek foreclosure on the properties the subject of the non-placed mortgage loans. This will probably lead to massive litigation against Countrywide for fraud-based claims and punitive damage requests, which may be one of the reasons why Bank of America has recently disclosed that Countrywide may be filing bankruptcy as we reported on this website earlier this week.

Which, again, leads to the importance of the immediate establishment of a separate Borrowers’ Committee in any Countrywide Bankruptcy. Otherwise, and as we cautioned in our article on this matter, Countrywide may seek to destroy literally millions of documents upon filing bankruptcy, and borrower claims may be relegated to the general unsecured creditors’ committee.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 19, 2011

The Huffington Post reported on Saturday, September 17 that Countrywide Financial’s losses could compel its parent company Bank of America Corporation to “put the unit on the bankruptcy block”. Countrywide Financial, the parent company which was purchased by B of A in 2008 (before it purchased Countrywide Home Loans separately in 2009) could file BK independantly as it maintained a separate legal identity notwithstanding the 2008 sale to B of A. According to the article, B of A has lost more than $22 billion from its consumer mortgage division in the past year, in large part because of loan losses and litigation settlements linked to Countrywide.

In August, AIG sued B of A for over $10 billion, claiming B of A was liable for Countrywide’s mortgage bonds as its legal successor thereto. Previously, the Association of Financial Guaranty Insurers, which insures securitized mortgage loans, had demanded that B of A exercise its repurchase options on billions of “bad” mortgage loans. B of A took the position that each loan had to be evaluated separately, but a court ruling prevented B of A from furthering that position, which would have dragged the litigation on for years.

What effect a CTW Bankruptcy would have on active and pending foreclosures is unknown, but what we do know, from our experience in the American Home Mortgage and Accredited Home Loans Bankruptcies (both of which were filed in the U.S. Bankruptcy Court for the District of Delaware) is that a separate borrowers’ Committee should be formed ASAP after any such filing, which committee should be independant of any “unsecured creditors” Committee. One reason is that one of the first things a lender does when it files Bankruptcy is to file Motions for permission to destroy documents, claiming that maintaining voluminous amounts of documents is a “burden on the estate”. The disasterous effect on borrowers seeking discovery in foreclosure actions involving CTW with the granting of any such Motion is beyond obvious.

The second reason is that the unsecured creditors’ Committee does not have any reason or impetus to exercise remedies to protect mortgage loan borrowers, as they have their own interests which are obviously diverse from (and sometimes antagonistic to) the interests of mortgage loan borrowers. Unless borrowers set up their own separate Committee with people who understand borrowers’ interests and will take aggressive action to protect borrowers, the rights of borrowers could be negatively impacted or lost outright in any lender bankruptcy.

We saw this personally when an attempt was made in the Accredited Bankruptcy to form such a Committee. The Motion for appointment of the separate borrowers’ Committee was denied by the Court because a pro se borrower, who herself was in foreclosure, was already on the general unsecured creditor’s Committee, claiming that she was “representing” the interests of mortgage loan borrowers. The position was thus taken by the Debtor lender that “borrowers are already represented within the Unsecured Creditors’ Committee” (which obviously and in reality they were not), and that a separate borrowers’ Committee would be “redundant”.

We also know from the AHM Bankruptcy that it is possible that the servicing unit could be sold separately out of the BK, as AHMSI (American Home Mortgage Servicing Inc.) was to an individual who then initiated thousands of foreclosures nationwide in the name of AHMSI as “servicer” while the parent “lender”, which filed BK in 2007, remained (and is still) in BK.

Bottom line is that borrowers have to keep a watchful and close eye on the maneuverings of B of A as to its “Countrywide Unit”, and prepare, in advance, for any Bankruptcy filing.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 16, 2011

We had a vigorous response within hours of yesterday’s post as to this seminar. The chosen date is Friday, November 11, 2011. Again, the seminar is limited to attorneys and paralegals only, and is also limited to fifteen (15) registrants.

The topic areas will be somewhat similar to those in the prior seminars, but certain new areas will be added including opposing Proofs of Claim and Stay Relief Motions in Bankruptcy; particular issues as to Pooling and Servicing Agreements including discovery and dispositive motions related to compliance with the PSA; handling objections to and compelling discovery of securitization and trust documents; and damage and unjust enrichment claims against foreclosing parties.

The Registration Form is available by e-mail request to [email protected].

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 15, 2011

FDN will be moving its California branch offices to the greater Los Angeles area by year-end, at which time the Newport Beach office will be closed with Mr. Barnes and his staff relocating to Los Angeles. The move is in connection with recent associations with Los Angeles area law Firms, and the need for access to multiple airports in connection with Mr. Barnes’ work in the Western states.

FDN will thus be conducting its final foreclosure defense seminar in its Newport Beach offices in the month of November, 2011. The seminar, like all others before it, will be confined and limited to attorneys and paralegals only. Interested attorneys and paralegals should e-mail Mr. Barnes at [email protected] with available dates in November, as the seminar will be scheduled on a date which is the most available to all who express an interest in attending.

The seminar will feature a “fall harvest” menu for breakfast and lunch, and will be scheduled on a Friday.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com 

September 14, 2011

A Florida Judge has ordered Deutsche Bank, the claimed “trustee” of a securitized mortgage loan trust, to produce numerous securitization documents (including the PSA, Master Purchasing Agreements, Issuer Agreements, Commitment to Guarantee Agreements, Release of Document Agreements, Trustee Agreements, etc.); documents concerning insurance on the securitized mortgage loan; credit default swap documents; servicing agreements; documents as to proof of charges listed on the HUD-1; documents as to the identification of the holder of or investor in any Special Investment Vehicle, Collateralized Mortgage Obligation, Collateralized Debt Obligation, mortgage-backed security, or credit default swap which is collateralized in whole or in part by the mortgage or note; and documents which identify all persons who authorized the filing of the foreclosure action. The ruling was in response to a Motion for Ruling on Discovery Objections and to Compel Documents in a Request for Production. The Motion and discovery were filed by Jeff Barnes, Esq., who represents the homeowner.

Deutsche Bank’s counsel waited ten (10) months before filing a “Response” to the Request for Production, which consisted almost entirely of objections. The Judge also compelled Deutsche Bank’s counsel to file and serve a Privilege Log as to all documents which DB claimed to be “privileged” in any respect.

The ruling represents another milestone for homeowners seeking discovery of securitization documents. For years, we saw the “banks”, servicers, and “trustees” of securitized mortgage loan trusts objecting to these documents on the grounds of “relevance” and “lack of standing”. As those of you who follow this website are aware, recent rulings have not only compelled this discovery and awarded attorneys’ fees and/or dismissed judicial foreclosures when the discovery is not produced, but the “relevance” has been seen by the Horace and Hendricks decisions which granted summary judgment to the homeowners based on matters in the very discovery which has been ordered to be produced in this case. The Horace court also held that the homeowner is a third-party beneficiary of the PSA.

This is the 13th such Order compelling securitization discovery which Mr. Barnes has obtained from courts in different states, including Florida, New Jersey, and Oregon.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com  

September 9, 2011

We are pleased to announce the addition of our second affiliate law Firm in Los Angeles, California. ProsperLaw, located at 6100 Center Drive, Suite 1050, Los Angeles, California 90045 and its attorneys including Senior Partner Gordon Dickson, Esq. and their affiliates will be representing homeowners throughout the State of California.

ProsperLaw becomes the 39th law Firm to have joined the FDN network since it was first established in early 2008.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 2, 2011

          (updated post from this morning, as we have literally received a blizzard of telephone calls since this post was first put up today)

Thirty-two Plaintiffs have filed a multi-count Complaint in the Circuit Court for Palm Beach County, Florida against JPMorgan Chase Bank and Chase Home Finance, LLC. The Plaintiffs retained Jeff Barnes, Esq., whose Firm, W. J. Barnes, P.A., filed the action last Friday.

The 29-page Complaint alleges several causes of action including violations of the Florida RICO Act, and requests temporary and permanent injunctive relief on a national level to halt all Chase-related foreclosure activity in the eight (8) separate states in which the Plaintiffs reside. The Complaint alleges a pattern of criminal activity on the part of JPMorgan Chase Bank and Chase Home Finance in connection with the institution of both judicial and non-judicial foreclosures, including but not limited to the filing and recording, in the public records, of forged and fraudulent documents; fraudulent collection activities; intentional misuse of the MERS system; and the intentional misrepresentation, in foreclosures across the United States, that Chase is the “successor in interest” to Washington Mutual Bank when in fact Chase itself has affirmatively represented, in multiple Federal court filings in different states, that it is NOT the successor in interest to WaMu, and only purchased certain defined assets and liabilities from the FDIC as Receiver for WaMu.

Since this article was originally posted this morning, we have had almost non-stop telephone calls from other victims of JPM and CHF who have told us the same thing over and over: that in their foreclosure, the same “Chase is the successor to WaMu” representation was made, which was done in an apparent attempt to foist a cloak of legal standing on the Chase entity which instituted the foreclosure. It thus appears, even at this early juncture, that the scope of the illegal and fraudulent conduct set forth in the Complaint is even more widespread than we could have imagined.

The Asset Purchase Agreement between the FIDC and Chase is over 70 pages long, yet the purchase by Chase of the certain assets from the FDIC as Recceiver for WaMu coincidentially took place on exactly the same day that WaMu failed and was taken over by the FDIC.

The Complaint details the common wrongful actions of JPM and CHF utilized in both judicial and non-judicial foreclosures instituted across the United States, characterizing the conduct as a “nationalized fraud”.

The Plaintiffs have also filed a Request for Production of Documents which is being served on JPM and CHF which requests the production of fifty-four (54) separate categories of documents relating to the Plaintiffs’ mortgage loans. This same discovery has previously been compelled, by Court Order, to be produced by foreclosing parties in numerous other cases throughout the United States where Mr. Barnes and his local counsel have propounded this discovery in connection with individual foreclosure challenges.

The Complaint is not a class action and is not a “mass joinder” case. It is a multi-Plaintiff action, which is not subject to the rigors of class actions such as certification of the class, and was never, at any time, advertised or intended to be a “mass joinder” case such as those the subject of the recent “K2” debacle. The case is also not related or affiliated, in any way, to any other litigation instituted against the Chase entities by any other group or which may be posted on any other websites, which other websites are apparently attempting to link other Chase-related lawsuits with the Florida action the subject of this article.

The action is the second RICO-based Complaint filed by Mr. Barnes’ Firm in recent weeks. The Firm previously filed an action in Arizona against M&I Marshall & Isley Bank which is grounded in part on violations of the Arizona RICO statute. That action is pending in Tuscon.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 1, 2011

Jeff Barnes, Esq. has been admitted pro hac vice to the Superior Court in and for Sussex County, Delaware in connection with a foreclosure action brought by Bank of New York Mellon as alleged trustee for a First Horizon securitized mortgage loan trust. BONY claims to have succeeded to the rights to the mortgage loan through MERS “as nominee” for First Horizon. The MERS and securitization issues are presently unresolved in Delaware as they are in many other states.

In Michigan, the Judge having juridsiction over the Hendricks decision, where Mr. Barnes and his local counsel James Fraser, Esq. prevailed on summary judgment against US Bank for its failure to comply with the PSA in allegedly transferring the homeowners’ loan to the securitized mortgage loan trust, has denied USB’s Motion for Reconsideration of the summary judgment ruling. The details of this decision were previously published on this website. 

The Hendricks decision was based in part on the same legal principles set forth in the Horace decision from Alabama which also granted summary judgment to the homeowner, finding not only that there was a failure to comply with the PSA in connection with the claimed transfer of the mortgage loan to the securitized trust, but also holding that the homeowner was a third party beneficiary of the PSA.

Mr. Barnes is also lead appellate counsel of an appeal pending in the Oregon Court of Appeals on the issue of MERS’ claimed status and authority, which is also unresolved on the appellate level in Oregon although there are Oregon trial, Federal, and Bankruptcy court opinions on the matter which are divergent. It appears that the appeal pending which has been filed by Mr. Barnes and his local Oregon counsel Elizabeth Lemoine, Esq. is the first Oregon appellate case which will hopefully resolve the issues surrounding MERS’ claimed status as a “beneficiary” and the claimed ability of MERS to assign notes and Deeds of Trust, appoint “Successor Trustees”, and otherwise undertake actions to further foreclosures.

Such actions are in direct contradiction to the MERS Terms and Conditions published by MERS itself (which have been produced in discovery in cases in Oregon where Mr. Barnes and Mrs. Lemoine represent the homeowners), which Terms and Conditions expressly preclude the use of the MERS system to either create or transfer beneficial interests in mortgage loans. MERS’ actions in attempting to assume a transferable interest in a note which it did not own or originate and transfer beneficial interests in Deeds of Trust are also directly contradictory to the restrictions on MERS’ authority arising out of representations of MERS’ own counsel set forth in the MERS v. Nebraska Dept. of Banking and Finance case from the Supreme Court of Nebraska.

The Oregon Trial Lawyers Association has filed an amicus Brief in support of the position taken by the homeowners represented by Mr. Barnes and Mrs. Lemoine. 

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com