August 29, 2014

As those of you who follow developments in foreclosure law know, the Lisa Blumfiel case in Colorado resulted in a written decision by Colorado Federal Judge Martinez that Colorado’s Rule 120 process, by which a non-judicial foreclosure is instituted through a non-adversarial “show cause” type proceeding, may be unconstitutional. The process does not permit any discovery or any appeal of an adverse decision, and only requires the “bank” to present minimal evidence in order to be entitled to the entry of an “Order Authorizing Sale” (OAS) to schedule a trustee’s (foreclosure) sale of someone’s property. Although a homeowner may assert real party in interest defenses in a Rule 120 hearing, there is no pre-hearing discovery, so the homeowner is at a distinct disadvantage while the “bank” is given all of the advantages. This is another form of what is called “disparate treatment” by a “state actor” (the Court) which treatment is illegal under the Federal civil rights laws.

The homeowner may file a separate action if an OAS is entered following a Rule 120 hearing and may challenge the foreclosure, but of course this requires the homeowner to expend significant effort (and money) filing a separate lawsuit, seeking a TRO to stop the sale, then seeking to convert the TRO to a preliminary injunction, and post a bond to preclude any sale while the foreclosure challenge proceeds. This process turns “innocent until proven guilty” on its head: the homeowner is presumed guilty as a result of the 120 hearing, and must thereafter “prove” that the bank has no authority to foreclose and pay for the privilege of doing so by posting a bond.

We are challenging this process in both the Colorado Court of Appeals and in a separate Federal action, based in part upon the concerns of Judge Martinez and upon the due process infirmities in the entire Rule 120 procedure. The local foreclosure mill which was handling the case for the “bank” was recently removed and replaced with a national law Firm, so apparently the bank is concerned.

On the continuing issue of homeowners being treated differently than other civil litigants, we recently had a situation where our client (represented by Mr. Barnes) sought to amend his defenses to the foreclosure based on recent case law which now permits a homeowner to assert defenses when they have been told that they had to be “behind” in their mortgage payments to be considered for a loan mod, only to rely on this and not make payments but with the “bank” thereafter telling them that they do not qualify for a loan mod because they are in “default.” When the homeowner attempts to make up the payments, the “bank” refuses to accept payments and returns any payment made, “as the matter is now in foreclosure.” This results, of course, in a fraudulently manufactured foreclosure.

Motions to amend defenses are routinely granted. Here, however, the motion was denied because granting it would have, as a matter of law, removed the case from the trial calendar. That is a simple downline effect of the granting of such a motion even though, as here, our client did not request that the November trial date be stricken. The attorney for the “bank” filed no opposition to the Motion, but argued that the Motion was filed for the simple purpose of delaying the trial (again, even though no such relief was requested in the Motion).

The Judge denied the Motion without explanation. When he was questioned by Mr. Barnes as to the reason for the denial (so that a proper record could be made for appeal purposes), the Judge responded by saying “I don’t have time to explain that; I have a whole courtroom of people here. Goodbye.”

How long would the “explanation” as to the reason for denying the Motion have taken, 2 seconds? Remember, the attorney for the “bank” filed NO OPPOSITION to the Motion. Thus, the ONLY reason for the denial was due to the legal effect of the case being removed from the trial calendar, which is not a recognized legal reason to deny due process by failing to permit an amendment to defenses.

Significantly, during the course of the 50+ hearings that were in front of this one, the same Judge repeatedly denied JOINT AND AGREED Motions filed by attorneys for banks and homeowners to continue trials as the homeowner was in a loan mod or other reason. It is unfathomable that the Judge denied agreements reached between the attorneys simply because the Judge wants to railroad trials through the system.

What needs to happen is that petitions to the rules committees need to be made, and demands need to be made to the various state legislatures to enact statutes precluding a Judge from refusing to honor agreements of the very attorneys on the case which agreements are designed to, for example, try to settle a case through a loan mod. If all states had anti-dual tracking statutes as California and Hawaii do (which prohibit maintaining or advancing a foreclosure case if the homeowner is in loan mod negotiations), a lot of this nonsense would probably be avoided. High time the other states smell the coffee and start protecting the interests of the very people who elect the legislators to begin with.

Jeff Barnes, Esq.,


August 11, 2014

In a searing, 6-page opinion which does not mince words, The Hon. Jean Johnson, Circuit Judge of the 4th Judicial Circuit for Duval County (Jacksonville-area) Florida finds and holds that JPMorgan Chase and its attorneys Shapiro & Fishman committed fraud on the court through misrepresentations involving a fraudulent assignment and claims which JPM and S&F knew were fraudulent when filed. The law Firm of Parker & DuFresne, P.A. represented the homeowner. S&F was represented at the hearing on the homeowners’ Motion to Dismiss the foreclosure With Prejudice by the Greenberg Traurig Firm. The matter is styled JPMorgan Chase Bank National Association v. Pocopanni, Case Number is 16-2008-CA-3989.

WaMu had filed a foreclosure action through S&F in 2008 alleging that WaMu was the owner and holder of the Note, which had been originated by another bank. As alleged evidence of this, WaMu submitted an Assignment of Mortgage which represented to the Court that the mortgage was assigned from the original lender to WaMu. However, this directly contradicted a prior assignment from 1992 which assigned the mortgage to Fleet Real Estate Funding Corporation without recourse. On the same day, Fleet assigned the mortgage to Fannie Mae and reserved no right in the mortgage.

On July 5, 1996, Fannie Mae, also represented by S&F, filed a Lis Pendens to what the Court termed a “prequel” to commencing a foreclosure action. Then, on August 20, 1996, another assignment of mortgage was filed showing an assignment from Fleet to Fannie Mae. This assignment was also prepared by S&F. The Court noted that the Fannie Mae lookup tool shows that the current owner of the note and mortgage is Fannie Mae, and thus concluded that: “it is now undisputed that the plaintiff [JPM] is not, nor has ever been, the owner and holder of the Defendants’ note and mortgage.”

Judge Johnson thus found that “WaMu, with the assistance of its previous counsel Shapiro & Fishman, submitted the Assignment when WaMu and Shapiro & Fishman actually knew that only Fannie Mae was entitled to foreclose on the Mortgage, and that WaMu never owned or held the note and Mortgage.” The ruling goes on to find that “Shapiro & Fishman had itself prepared a false assignment of mortgage” and also found “by clear and convincing evidence that WaMu, Chase and Shapiro & Fishman committed fraud on this Court.” Further, “The Court finds that Shapiro & Fishman, at all times material, filed the Complaint, the Assignment, and the Motion for Substitution (of the Plaintiff) with actual knowledge that the averments and representations made in those papers were false.”

The Judge also stated that “these acts committed by WaMu, Chase and Shapiro & Fishman amount to a ‘knowing deception intended to prevent the defendants from discovery essential to defending the claim’ and are therefore fraud”, and dismissed the foreclosure with prejudice.

Kudos and bravo to Judge Johnson for exposing this fraud on the record. As those of you who follow this website know, one of our clients obtained an attorneys’ fee award against S&F’s client in another case in connection with a dismissal of the case by the Judge on Motion of Mr. Barnes. S&F appealed the decision and lost. Rather than paying the attorneys’ fee award, S&F continues to battle our client and refuses to pay the award even though it lost the appeal of the dismissal. A hearing on the matter is thus being scheduled.

Jeff Barnes, Esq., www/


August 6, 2014

A trustee’s (foreclosure) sale has been stopped in Williamson County, Tennessee on Motion of the homeowner who is represented by Jeff Barnes, Esq. and local TN counsel John Higgins, Esq. This is the second sale which has been stopped by Mr. Barnes and Mr. Higgins in TN in a span of 11 days.

The case involves an origination by America’s Wholesale Lender (which stopped doing business in 2008) and an alleged transfer to a 2005 securitization Trust via MERS. Nationstar Mortgage LLC sought foreclosure as the servicer to the Trust.

Nationstar’s attorneys Rubin & Lublin PLLC sent a letter to the homeowner claiming that she had a loan with MERS. This statement was not only false in fact (as MERS does not lend money, is not the “Lender” on the Note, and is never a “lender”), but was also made more than six months after the Court of Appeals of Tennessee issued its decision in the MERS v. Ditto (No. E2012-02292-COA-R3-CV, opinion issued January 2, 2014) which held that MERS has no independent or protected interest despite MERS being named as the “beneficiary” or “nominee”.

To further confound the matter, on May 2, 2014, Nationstar advised the homeowner that the foreclosing party is The Bank of New York Mellon FKA The Bank of New York as successor Trustee to JPMorgan Chase Bank, N.A. as trustee for the Structured Asset Mortgage Investments II Trust. However, 7 weeks later (on June 23, 2014), Nationstar’s attorneys Rubin & Lublin claimed that an entity styled Bank of New York Mellon Corporation as the Trustee for the Structured Assets Mortgage Investments II, Inc. was the foreclosing party. The letter advised that the sale was scheduled for August 7, 2014.

It gets worse. On July 7, 2014, Nationstar sent a letter to the homeowner claiming that JPMorgan Chase Bank as Trustee for a trust with a different description was the owner of the loan. Four days later, Nationstar’s attorneys sent a letter to the homeowner again claiming that the homeowner had a loan with MERS, and again claimed that BNY “Corporation” as trustee for the Trust “Inc.” was foreclosing. There is no explanation for the change in entities, or how the loan rights went first to the 2005 Trust for either of the BNY entities, then to JPM, then back to BNY.

Accordingly, the Court, on papers researched and drafted by Mr. Barnes and filed by Mr. Higgins who handled the TRO proceeding, stopped the sale.

Jeff Barnes, Esq.,


August 1, 2014

The Court of Appeals of New Mexico, in reversing a summary judgment in favor of The Bank of New York as the claimed “trustee” of a Countrywide securitization trust, has reaffirmed existing New Mexico case law that MERS cannot assign promissory notes, and that production of a Note with an “endorsement in blank” after the filing of the Complaint does not satisfy the standing requirement even if the foreclosing party is in possession of the Note. The decision in The Bank of New York Mellon, etc. v. Lopes, Docket No. 32,310 was issued on July 22, 2014.

BNY argued that the MERS assignment of mortgage entitled BNY to enforce the Note. The Court rejected that argument citing the New Mexico Supreme Court’s opinion in Bank of N.Y. v. Romero, 320 P.3d 1 (NM 2014), which held that MERS is merely a nominee for the lender and as such lacked any authority to assign the Note.

BNY then attempted to introduce the Note with a claimed “blank endorsement” at the summary judgment hearing, which had not been attached to the Complaint as of the time that suit was filed. BNY also claimed that it was the “holder” by mere possession of the Note. The Court also rejected that argument, stating that “possession is not necessarily sufficient to make one a holder”, again citing the NM Supreme Court’s Bank of N.Y. v. Romero decision.Summary judgment was reversed because BNY did not establish that it had standing at the time that the Complaint was filed.

Significantly, the Court noted that the Note was not payable to BNY, and that the “endorsement” was stamped by Michelle Sjolander, who we all know to be an admitted robo-signer who has testified under oath in a deposition that she never signed endorsements to notes.

We thank one of our dedicated followers for bringing this decision to our attention.

Jeff Barnes, Esq.,