May 29, 2012

First, we hope that everyone had a happy and safe holiday weekend.

On Wednesday, May 24, 2012, Jeff Barnes, Esq. stopped a foreclosure sale in a case in Key West, Florida which was scheduled to occur the next morning. Although the foreclosing Plaintiff had, allegedly, tendered the original mortgage and Note to the court at a prior summary judgment hearing, there was no record of the actual documents being in the court file. Florida law, including recent case law, requires that the actual documents be in the court file at the time of a summary judgment hearing and foreclosure judgment. The Chief Judge cancelled the sale in view of the documents not being in the court file and thus not part of the record at the time of the foreclosure.

Separately, the United States District Court for the District of New Hampshire has denied Wells Fargo’s Motion to Dismiss a homeowner’s complaint in the matter of Drouin v. American Home Mortgage Servicing, Wells Fargo Bank, and Option One Mortgage Corporation, Case No. 11-cv-596-JL (Order issued May 18, 2012). The case involved a simlar factual situation as another being litigated by Jeff Barnes, Esq. in another state, and involving an alleged assignment by Sand Canyon (the “changed” name of Option One) at a time Option One nor Sand Canyon did not own any mortgages.

In Drouin, the court found that Option One changed its name to Sand Canyon Corporation in early 2008, and by virtue of an affidavit of Sand Canyon’s President filed in another matter in 2009, Sand Canyon did not own any residential real estate mortgages as of that time. Notwithstanding this admission under oath, there was a purported “assignment” of the homeowner’s mortgage from Sand Canyon to Wells Fargo on March 24, 2011.

The court held that the homeowners had standing to attack the alleged transfer as there was not and could not have been any assignment as a matter of fact. The court held that the challege was not an attack on the assignment itself, but that no assignment occurred, concluding that the homeowners had standing to pursue their theory that Sand Canyon did not hold their mortgage and thus could not have assigned it to Wells Fargo. The court also found that because of this, Wells Fargo’s argument that the homeowners could not assert a cause of action to enjoin a foreclosure was “easily rejected.”

If Wells Fargo in fact maintained the position that it was assigned the mortgage by Sand Canyon, this could possibly be construed as a fraud upon the court, as the affidavit of Sand Canyon’s President and the matters therein, which were sworn to under oath, are matters of public knowledge which should have been known to Wells Fargo at all times material both before and during the 2011 foreclosure case.

We thank one of our dedicated readers for bringing this important opinion to us.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com 

May 23, 2012

Mr. Barnes’ offices will be closed from Friday, May 25, 2012 through and including Monday, May 28, 2012 in connection with the Memorial Day weekend. Mr. Barnes will be out of town Thursday, May 24, 2012 on other business. We wish everyone a safe and happy holiday weekend.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

May 23, 2012

FDN is pleased to announce the addition of Edward Levy, Esq. and the Atlas Law Firm of Denver, Colorado to our nationwide attorney network. Mr. Levy is a former CPA and current bankruptcy litigator who has associated with W. J. Barnes, P.A. and Jeff Barnes, Esq. to defend foreclosure-related matters in bankruptcy cases in Colorado, including Motions for Relief From Stay and Proofs of Claim filed by servicers, securitized mortgage loan trustees, and other parties attempting to foreclose. Mr. Levy’s is the 43rd law Firm to become associated with the FDN network.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

May 17, 2012

FDN’s Jeff Barnes, Esq. has been recently retained to file appeals in cases in Oregon and Minnesota, and will also be appellate co-counsel in an appeal in Montana. The appeals are of adverse summary judgment rulings in cases involving MERS and securitization issues. Mr. Barnes is currently lead appellate counsel on appeals pending in Tennessee, Oregon, and Florida.

Yesterday, Mr. Barnes argued an appeal before the (Federal) 9th Circuit Bankruptcy Appellate Panel on the issue of whether the Bankruptcy Judge erred in failing to sustain the Debtor/homeowner’s objection to an Amended Proof of Claim (POC) filed by US Bank as the claimed Trustee of a securitized mortgage loan trust. The original POC had been filed by Wells Fargo as servicer. The case involves a POC which is grounded upon a “Lost Note Affidavit” which specifically states, under oath, that the transfer is based on a Mortgage Loan Sale Agreement (MLSA). However, the MLSA was never produced and never entered into evidence despite USBank being given multiple opportunities to do so.

The Lost Note Affidavit submitted by USB purports to justify an initial transfer of the mortgage loan in late May of 2006 to one of the interim transferees pursuant to the MLSA which is dated March 3, 2002. Significantly, the Order appealed from recites that the loan was never assigned. There was also no evidence that the transfer to USB complied with the Mortgage Loan Conveyance Provisions of the PSA (for the securitized mortgage loan trust). 

The Bankruptcy Judge sustained USBank’s Amended Proof of Claim absent (a) any evidence of assignment and (b) absent the MLSA (upon which the original transfer was based) being entered into evidence. As to the PSA issue, the Bankruptcy Judge’s position was that the intent of the PSA was to transfer the loan, so it must have taken place.

Mr. Barnes has also just been recently retained in cases in Oaklahoma and New Mexico, and more inquiries are being received from those states.   

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

May 15, 2012

FDN’s summer foreclosure defense seminar, which will be held in Boca Raton, Florida, is being rescheduled. The seminar had been planned for June 29. Due to a professional conflict which has arisen, the seminar is being rescheduled to a later date, which we are intending to be in late July or sometime in August. The firm date will be posted on this website once it is chosen.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

May 11, 2012

A Morris County, New Jersey Judge has today dismissed a foreclosure filed by US Bank as the claimed “trustee” of a securitized mortgage loan trust for its repeated failure to comply with Court Management Orders compelling securitization discovery, including producing a witness of US Bank as Trustee for deposition. The Court has entered four (4) Management Orders compelling the discovery, all of which were not complied with by US Bank. The Order of Dismissal recites the deficiencies of US Bank as to the subject discovery.

The homeowners are represented by Jeff Barnes, Esq. and local NJ counsel Dan Schmutter, Esq. Today’s dismissal is yet another in a string of dismissals which have been entered on Motion of Mr. Barnes and his local counsel for the foreclosing Plaintiff’s refusal to comply with discovery. Previous dismissals have been entered in Atlantic, Glouster, and Monmouth counties, with Morris County being added today.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

May 7, 2012

The nonsense and outright lies perpetrated by the banks just keeps getting more and more unbelieveable. This latest example is laughable out loud.

Numerous homeowners around the United States have been sending us correspondence from Chase Home Finance (which merged into JPMorgan Chase some time ago) and attorneys representing Chase stating that “Chase is committed to helping homeowners remain in their homes”. These letters have been sent in connection with threatened foreclosure proceedings, and with information as to (purported) loan modification through HUD.

The result is disturbingly the same: the “offer” from Chase is a loan “modification” where the new payment is larger than the monthly payment sought to be reduced by modification. As Chase has actual knowledge that the homeowner cannot even make the current monthly payment, Chase is obviously intentionally setting up the homeowner for a loan modification “offer” which Chase knows must be declined as economically impossible.

To add insult to the injury, the Chase loan mod program is known as “Once and Done”, meaning that if a loan mod offer is rejected that Chase will not make any further loan modification efforts, and will commence foreclosure proceedings.

Chase also has a record, as do other banks, of claiming that a trial mod payment was “not received timely” resulting in a default being declared when in fact the homeowner has proof that the payment was received timely if not before the due date. Again, more evidence of Chase’s intentional manufacturing of fraudulent defaults for the purpose of furthering fraudulent foreclosures.

So there you have it: if you don’t agree to pay Chase more money which Chase knows up front that you cannot afford, there is no loan mod, and you proceed to foreclosure. Obviously this is Chase’s intended result, purposefully structured so that it can tell the Government that “well, we attempted to work with the homeowner, but the homeowner rejected our offer…”, knowing full well that the alleged “modification” was not made in good faith and knowing what the only consequence will be.

More “good public relations” from Chase and Mr. Dimon.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com