October 24, 2014

Homeowners in Florida received some substantial justice with the Final Judgment entered on October 16, 2014 in the matter of Bank of America v. Nash, Seminole County, Florida Case No. 59-2011-CA-004389. The Court found, from the testimony of BOA’s witness, that despite the endorsement in blank by Countrywide dba America’s Wholesale Lender (AWL), no such corporation was ever formed by Countrywide, or BOA, or any of their related corporate entities or agents. BOA’s witness also testified that AWL never had a lender’s license in Florida and did not have authority to do business in Florida as a New York Corporation. The homeowner was represented by John G. Pierce, Esq. of Orlando, Florida. Butler & Hosch, P.A., also of Orlando, Florida, represented BOA.

BOA’s witness also testified that he had no knowledge of the existence of any document transferring any interest in the Note or Mortgage from the Lender to FNMA, which was alleged in the Complaint to be the owner of the Note and Mortgage when the Complaint was filed.

The Court found that the Note and Mortgage were void because AWL was not in fact incorporated in 2005 or ever by either Countrywide or BOA or any of their agents; that the “alleged mortgage loan” was void and invalid because AWL was not a licensed mortgage lender in Florida; that BOA and its predecessors did not have the right to receive payment on the loan because the loan was invalid and void because the mortgagee did not exist; and that the “alleged Assignment of Mortgage” was invalid because MERS had no authority to assign a loan which it did not own and was only a nominee for a non-existent corporation.

The Court thus found that BOA had no standing to bring the action and no legal right to attempt to claim ownership of the Note or the Mortgage or any right as servicer for some unknown entity or to collect monies. The Court thus found that the homeowner was entitled to recover all monies paid by the homeowner to BOA or its predecessors in interest in addition to attorneys’ fees and costs. The Court entered a judgment against BOA for almost $76,000.00.

This decision thus finally exposes the fantasy that was “America’s Wholesale Lender”, and the fraud perpetrated by Countrywide and BOA across the US in all cases where it claims that the lender was AWL and that MERS allegedly transferred an interest which it (a) did not own, and (b) could not have had as it could not be a nominee of a corporation which did not exist.

Separately, the Superintendent of the NY Department of Financial Services has uncovered what he has characterized as “serious issues” with Ocwen Loan Servicing’s systems and controls, including backdating that created situations where borrowers facing foreclosure received letters from Ocwen that specified a cure date for a claimed default which had passed months before the homeowners received the cure letters. Here, then, is proof positive that Ocwen, through the use of the U.S. Mails, intentionally manufactured fraudulent defaults for the purpose of thereafter pursuing fraudulent foreclosures and defrauding homeowners (RICO, anyone?). Ocwen’s stock plummeted as much as 24% and had been halted twice in view of these findings.

We thank our dedicated readers for sending us the Nash decision and the update on Ocwen.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 20, 2014

The Save Your Home America alliance has invited FDN attorneys to be exhibitors and speakers at their world convention which is being held in the Los Angeles Fairplex (in the Los Angeles County Fairgrounds complex) this Saturday, October 25, 2014. FDN attorneys Jeff Barnes, Esq, Jason Estavillo, Esq., and Douglas Klein, Esq., and paralegal E. Daniel Gyurec of the law offices of Joseph L. DeClue, Esq. will be manning the FDN booth at the convention, and Mr. Barnes has been invited to speak on the issues related to MERS in view of his wins against MERS in the Supreme Courts of Oregon and Montana.

Mr. Klein handles foreclosure defense primarily in Southern California including the United States Bankruptcy Courts in Los Angeles and San Diego, in addition to litigation in Los Angeles, Riverside, San Diego, and San Bernadino counties. Mr. Estavillo handles foreclosure defense cases in the San Francisco Bay area, while Mr. Gyurec’s Firm (Joseph L. DeClue, Esq.) handles cases in Orange County and Southern California. As those of you who follow this website know, Mr. Barnes handles foreclosure defense in numerous other states around the United States (and as Messes. Klein, Estavillo, and DeClue handle California cases).

The Convention begins at 9:00 a.m. and runs until 6:00 p.m. Come and meet us on Saturday!

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 2, 2014

Since its release in 2010, the U.S. Court of Appeals for the 6th Circuit’s decision in Livonia Properties Holdings LLC v. 12840-12976 Farmington Holdings LLC, 399 F. App’x 91 (6th Cir. 2010) has been misused by bank and servicer attorneys, and erroneously interpreted by many courts, for the alleged proposition that a homeowner never has standing to challenge an assignment to which the homeowner was not a party. Notwithstanding that the assignment is an attempt to transfer the homeowner’s mortgage or Deed of Trust to another party, the banks and servicers consistently take the position that the homeowner is not a “party” to the assignment.

The 6th Circuit has finally clarified Livonia Properties in Slorp v. Lerner Sampson et al., No. 13-3402 (6th Cir., opinion issued September 29, 2014), which reversed an adverse decision to the homeowner made by the Ohio Federal District Court and permitted the homeowner to assert numerous claims including a claim under the Federal RICO Act. The Court stated that its Livonia Properties opinion “has confounded some courts and litigants”, and admitted that the sweeping rule which was quoted and which endorsed the general statement was done “perhaps inartfully.”

The Court also stated that it “quickly limited the scope of that rule, clarifying that a non-party homeowner may challenge the validity of an assignment to establish the assignee’s lack of title, among other defects”, and “Thus, a non-party homeowner may challenge a putative assignment’s validity on the basis that it was not effective to pass title to the putative assignee” (citing several other cases). In reversing the District Court, the 6th Circuit permitted Slorp (the homeowner) to challenge the assignment by asserting that “Bank of America (the putative assignee) held neither his mortgage nor the attendant promissory note when it filed the foreclosure action because the parties lacked the authority to assign his mortgage to Bank of America when they purported to do so”, and “That distinction makes all the difference”.

The Court held that because Slorp alleged that the assignment was fraudulent and that Bank of America therefore did not hold title at the time of the foreclosure that Livonia Properties did not bar his suit, and stated “in fact, it supports it.”

This is a milestone decision of more than significant importance. This decision needs to be given to every Judge in every case where the homeowner challenges an assignment in the manner which Slorp did and the bank or servicer attorney counters with the misinterpretation of Livonia Properties in an argument that the homeowner allegedly lacks standing to challenge the assignment. In fact, we urge counsel in those states whose appellate courts have come to the same erroneous reasoning to seek to vacate any decision which denied a similar challenge to an assignment based on the misapplication and misreading of Livonia Properties.

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

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com