January 23, 2015

Jeff Barnes, Esq. of W. J. Barnes, P.A. has been retained by the homeowner in a foreclosure case pending in the U.S. Virgin Islands. The Plaintiff has just recently sought to file an Amended Complaint. The case involves multiple alleged transfers of the loan and a MERS Assignment “signed” by Michelle Sjolander, who has testified in a prior deposition that she did not execute such documents.

Separately, the Florida 4th District Court of Appeal reversed a final judgment of foreclosure in a securitization case, holding that the plaintiff failed to demonstrate the chain of transfers of the loan where there was no endorsement on the Note. The decision in Murray v. HSBC Bank USA NA as Trustee, etc., No. 4D13-4316, was just issued two days ago on January 21, 2014. The court found that there was no evidence of a transfer from the original lender (Option One California) to the interim party Ace Securities Corp. as the securitization depositor.

HSBC argued that the PSA identified the Option One entity as a “successor” to Option One Mortgage Corporation and that Option One transferred its interest to HSBC through the PSA. The court disagreed.

This portion of the holding is important, as it shows that the borrower may challenge a transfer made allegedly in accordance with the PSA, notwithstanding the Castillo decision from the Florida 3d District Court of Appeal which held only generally, and without any specific facts, that a borrower cannot complain of noncompliance with the PSA.

Florida thus remains split on the issue of whether a borrower may assert defenses based on matters within the PSA, which conflict will remain unless and until the matter is taken to the Supreme Court of Florida for resolution of the conflict between the 3d and 4th appellate district courts.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 17, 2015

The Florida Third District Court of Appeal has issued a decision which upheld a statute of limitations defense where the prior dismissal was without prejudice and where the subsequent filing was beyond the statutory period for initiating an action where the prior action claimed an acceleration of the amount due under the Note. The decision in Deutsche Bank National Trust Co. v. Beauvais, issued December 17, 2014, sets up a conflict between two Florida appellate courts as to the use of the statute of limitations defense. The Florida 3d District Court of Appeal sits in Miami-Dade County. The 4th District Court of Appeal, which sits in Palm Beach County, previously issued a decision providing that the statute of limitations defense does not apply even with a prior acceleration and regardless of whether the prior dismissal was with or without prejudice.

The Beauvais decision distinguished the 4th DCA decision, and explained that when a prior dismissal is with prejudice, it operates as an “adjudication on the merits” and thus destroys any issue as to acceleration and thus use of the statute of limitations defense. By contrast, when the prior dismissal is without prejudice, the prior acceleration is preserved and keeps the statute of limitations clock ticking.

This has a direct effect on the thousands of cases previously filed by David Stern which were left in limbo when his Firm closed years ago. Many other Firms have since picked up “old Stern files” which were dismissed without prejudice due to, e.g., lack of record activity, but which filings contained an acceleration. These cases are prime targets for use of the statute of limitations defense for foreclosure cases in at least 2 Florida counties for now, and possibly for use in 62 other counties as well.

Florida has 67 counties and 5 appellate court districts. Beauvais is presently binding on foreclosure cases in Miami-Dade and Monroe (Florida Keys) counties, while the 4th DCA decision is binding on foreclosure cases in Broward, Palm Beach, and Martin counties. Any other foreclosure in any other Florida county is up for grabs, and the Judge can accept either decision if they want, but are not bound to do so.

Beauvais has set up what is called “conflict certiorari jurisdiction” to the Florida Supreme Court to decide who is right. Until the Supreme Court sorts the matter out, there is uncertainty in most of Florida as to the use of the statute of limitations defense where a prior dismissal occurred of an action which accelerated the note balance and where the subsequent filing is outside of the statutory period.

Separately, there is no secret that Ocwen Loan Servicing has become the target of several official investigations in several states for fraudulent foreclosure practices. As most of you also know, the “servicer wars” between Ocwen, SPS, SLS, Bayview and Nationstar have resulted in Ocwen getting the lion’s share of the servicing contracts. Thus, if Ocwen folds, there will be literally tens of thousands of foreclosure cases left up in the air.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 7, 2015

It is with great sadness that we advise that our family member and best friend Keith Goldwater passed away yesterday. He was 58, and lost his life suddenly and without warning from cardiac arrest.

Keith was not only the most trusted employee that W. J. Barnes, P.A. ever had. He was also the kindest, most caring soul that any of us had ever known. No matter how tired he was, no matter how hard he worked, he always took care of what needed to be done, whether for family or work, and never said a word about it. Although suffering from diabetes and a host of other illnesses over the years, Keith never, ever complained, and was there whenever you needed him. His unflinching loyalty and trustworthiness were second to no person in the entire universe.

So long, my friend.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com