April 30, 2013

A Sevier County, Tennnessee Special Master has today overruled a Motion to Dismiss a homeowner’s Complaint for Decalratory Relief. The Motion was filed by the Bank of New York Mellon as the claimed trustee of a 2005 securitization trust, which had originally moved to stay discovery and to dismiss and later filed a Motion for Protective Order claiming that no further discovery should be had until the Motion to Dismiss was decided. The matter was argued in two special court sessions lasting several hours over the course of several months, with the final session being argued and the ruling being issued today. The ruling will proceed to the presiding Judge.

Jeff Barnes, Esq. represents the homeowner together with local TN counsel Andrew Farmer, Esq. Mr. Barnes, who has been admitted pro hac vice in the case, prepared the briefs and argued both motions.

The case involves two conflicting assignments: one mentioned in an undated Notice of Substitute Trustee’s sale which claims that the loan was assigned to BNYM at some unidentified time by BAC GP LLC as attorney in fact for BAC Home Loans Servicing f/k/a Countrywide Home Loans Servicing (with no power of attorney attached), and a May 7, 2010 MERS assignment which attempts to assign the loan to a trust which closed in 2005. The Amended Complaint also requests a judicial declaration as to any paydowns or payoffs of the loan through securitization-related payments, including credit default swaps, insurances, and reverse pools. With the Motion to Dismiss being denied, the Motion for Protective Order was denied in part and withdrawn as to the balance.

Jeff Barnes, Esq.,


April 24, 2013

For the fourth time, the Iowa District Court for Greene County has denied summary judgment sought by the foreclosing party, which was originally Wells Fargo but is more recently US Bank as Trustee of a securitized mortgage loan trust. This is a case we have reported on several times previously in connection with the Iowa Court’s prior three (3) denials of summary judgment. Jeff Barnes, Esq. represents the homeowner together with local Iowa counsel Christine Sand, Esq.

The case was originally filed by Wells Fargo, which dismissed without prejudice after being denied summary judgment three times. US Bank as Trustee re-filed the action, which involves a Lehman Brothers loan and a 2004 SASCO trust. The Court found that Wells Fargo had essentially lied under oath about being the “holder” of the Note (which it stated it was in an Affidavit filed in support of one of the prior motions for summary judgment), as Wells Fargo later admitted that the Note had been lost and never found. The Court rescinded one of the prior summary judgments on that basis.

The fourth Motion for Summary Judgment was denied by Ruling dated today, which states that the Court finds that there does exist a fact issue concerning the proper person to recover under the terms of the promissory note and the foreclosure of the accompanying mortgage. The original Note has not been produced to date, and none of the Affidavits filed by the Plaintiff address the relevant facts.

Separately, the Florida 5th District Court of Appeal has reversed a summary judgment in favor of JPMorgan Chase Bank in the matter of Green v. JPMorgan Chase Bank, N.A., Case No. 5D12-870 (opinion filed April 5, 2013). Green’s original loan was with WaMu. Chase moved for summary judgment, claiming that it had the right to enforce the Note and Mortgage through the Purchase and Assumption Agreement (P&AA) [with the FDIC] and thus JPM had standing. The Court found that the indorsement in blank on the Note did not establish that JPM had the right to enforce the Note when it filed suit as the indorsement was undated, and that the P&AA was not authenticated for purposes of summary judgment.

As we have previously reported, there is no Mortgage Loan Schedule to the P&AA per the sworn deposition testimony of former WaMu and JPM employee Lawrence Nardi (who is no longer with JPM and is now in senior management at Bank of America), and JPM has admitted, in a Motion for Summary Judgment filed in the Deutsche Bank v. FDIC and JPM litigation in the United States District Court for the District of Columbia, that is is “not the successor in interest to WaMu” per the P&AA.

We thank one of our dedicated followers for bringing the Green decision to us.

Jeff Barnes, Esq.,


April 22, 2013

If this does not spark outrage among the public, nothing will. The information below was provided to us from one of our dedicated followers.

For months, United States Representative Elijah Cummings (D, MD) and Massachusetts Senator Elizabeth Warren have been requesting information from the Fed and the OCC about what took place in the “Independant Foreclosure Review” process. Of the 14 information requests which were made, only one question was answered in full. After a meeting between Cummings, Warren, and the Fed and OCC staff, a 9-page, single-spaced letter was sent to Ben Bernanke (Chairman of the Fed) and Thomas Curry (OCC) by Representative Cummings and Senator Warren which described what transpired. Pertinent sections of the letter:

“Two years ago, your offices (the Fed and OCC) issued a public report announcing that you determined that 14 mortgage servicing companies were engaging in ‘violations of applicable federal and state law’. You found that these abuses have ‘widespread consequences for the national housing market and borrowers’. We have requested information about the process used to conduct this review and the extent to which violations of law were found. At the meeting yesterday, Federal Reserve staff argued that the documents relating to widespread legal violations are the ‘trade secrets’ of mortgage servicing companies. In addition, staff from the Office of Comptroller of the Currency argued that these documents should be withheld from Members of Congress because producing them could be interpreted as a waiver of their authority to prevent disclosure to the public of confidential supervisory bank examination information…. Breaking the law is not a corporate trade secret. As regulators, you identified systematic and widespread abuses two years ago, and concealing important information about these violations limits our ability to fulfill our responsibililty to conduct oversight over the actions of mortgage servicing companies and to develop legislation to protect our constituents from further abuse.”

Several matters are evident. First, mortgage servicing companies are not “banks”. Thus, if this is the position the Fed and the OCC are taking, then the Fed and the OCC are admitting that the “banks” which use the servicng companies (and “supervised” them) were aware of the widespread violations of federal and state law, yet are teaming up with the offending banks to perpetuate their fraudulent conduct.

Second, trade secrets are a form of intellectual property, and any claim for preclusion from disclosure of alleged “trade secrets” has to be ruled upon by a Judge in any litigation if this barrier to discovery is raised. A trade secret is something which an industry has chosen to keep secret for purposes of protecting a legitimate business interest, such as unfair competition. The standard for establishing a trade secret (in a country based on free-market capitalism) is very high.

How do the Fed and the OCC come off arguing that documentation relating to what both the Fed and the OCC have publicly admitted show “widespread violations of federal and state law” by mortgage servicers rise to the level of a “trade secret”? Are the Fed and the OCC really advocating that documents created by mortgage servicing companies which are part of a design to commit legal wrongs on homeowners are “trade secrets” which warrant protection from disclosure and withholding of the information from our elected Representatives and Senators? The letter says it all: the OCC and the Fed are undertaking actions to prevent our elected representatives from implementing legislation to protect us from the fraudulent banks and servicers.

This is beyond outrageous.

Jeff Barnes, Esq.,


April 12, 2013As we all know, there are promissory notes with “blank endorsements” on the Note, and there are Notes with no blank endorsement or endorsement of any kind by which the foreclosing party seeks to enforce via undated and unauthenticated “Allonges.” Certain states, such as Florida, have case law which explains the difference between the two, and Colorado has a statute which deals with Allonges and the requirements for proving the legal effect of an Allonge. The two situations (a Note with an actual endorsement in blank or special endorsement on it versus a Note with no endorsement of any kind) are legally different, and the proof requirements for enforcement are different are well.Notwithstanding this, we have had to deal with attorneys for foreclosing “banks” who, in the last 3 weeks and in different states, told courts through Motions, Affidavits, and argument that a Note is “endorsed in blank” when in fact the Note contains no endorsement of any kind, with there only being the presence of a separate paper styled “Allonge” or “Allonge to Note” or “Endorsement Allonge” which is undated and has no independent evidence of authenticity. These attorneys are thus lying to the courts, as are the persons who sign affidavits who claim that the foreclosing party has “the Note endorsed in blank” when in fact there is no such endorsement. This false testimony constitutes perjury, but few Judges seem to think that this matters when the bank’s attorney cries “but Judge, they have not paid the mortgage in years”.We are thus making records and taking appeals where there are decisions rendered based on these false representations and perjured testimony. It seems that some of the courts just want to railroad the foreclosures through without scrutinizing whether the foreclosure action and alleged proofs comply with the law. More appeals courts need to do what one appeals court did in Florida, stating in an opinion that the court’s prior opinion on the issues related to questionable undated endorsement “bears repeating”, because the trial court apparently did not pay attention to the law when it entered the judgment against the homeowner, which judgment was reversed by the appeals court.Jeff Barnes, Esq.,


April 2, 2013

A Volusia County, Florida Circuit Judge has this morning denied a Motion for Summary Judgment filed by USBank as the claimed trustee of a securitized mortgage loan trust which closed in 2005. Counsel for USBank argued that the “note was endorsed in blank”, which was a falsity as there is no endorsement on the Note at all, and the “Allonge” filed by the Plaintiff after the suit was filed was on a separate sheet of paper and was undated, unnotarized, unwitnessed, and was signed by “Lydian Data Services” of Boca Raton, Florida (a company which was acquired by another company in 2009) with no evidence of authority for Lydian to sign anything for anyone.

The MERS “Assignment” attempted to transfer the loan to the securitized mortgage loan trust years after the trust closed, and was signed by known robo-signer Herman John Kennerty, who testified under oath that he signs between 50 and 150 documents per day and only checks the date of the document. The relevant portion of the deposition was filed with the Court as part of the homeowner’s opposition to the summary judgment motion. Mr. Kennerty set forth no facts in his Affidavit as to the “Allonge” or how USBank came into any interest in the Note. There was also no evidence that USBank had any interest in the Note when the case was filed.

The attorney for USBank also claimed that “The Plaintiff filed opposition to the borrower’s affirmative defenses”, which was also a false statement, as there was no summary judgment evidence filed to negate any of the homeowers’s affirmative defenses. The law in Florida requires admissible evidence to legally refute all of the homeowner’s affirmative defenses.

The homeowner is represented by Jeff Barnes, Esq., who personally argued the matter in court in Deland, Florida this morning. Mr. Barnes was the only attorney to appear personally in court for the entire calendar of hearings; there were six attorneys for the “banks” on the phone, and no other attorney appeared to defend any other homeowner on any of the other cases on the hearing calendar.

Jeff Barnes, Esq.,