January 28, 2016

A Washington Court has entered an Order today which awarded a homeowner over $213,000.00 in damages against Cenlar, a loan servicer, which included damages for emotional distress arising out of Cenlar’s wrongful imposition of charges including attorneys’ fees. A copy of the full opinion, which was sent to us by our network counsel in Washington this afternoon, is available upon e-mail request to us.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 28, 2016

FDN network counsel John Higgins, Esq., assisted by Jeff Barnes, Esq., have stopped post-foreclosure proceedings in Tennessee with the filing of a separate Federal action seeking rescission under the United States Supreme Court’s Jesinoski decision, which held that a rescission is effective upon mailing. The foreclosing party failed to undertake any action to seek to challenge the homeowners’ statutory right to elect rescission within the timeframe provided by the TILA statutory scheme (and in fact made no challenge at all).

The foreclosing party is Bank of NY as the claimed “trustee” of a Countrywide securitization. The home had been sold to third parties, who were named as co-Defendants in the homeowners’ rescission action which also seeks Declaratory Relief, as such an action requires joinder of any party who may have an interest in the outcome of the action or whose interests may be affected by any Final Judgment entered in the action.

Mr. Barnes prepared the rescission Complaint, which was filed by Mr. Higgins, who also sought a stay of the state court foreclosure proceedings. Despite vicious anger and screaming by counsel for BNY and the third parties and their insistence on an unreasonable bond, the Tennessee state court Judge found that a stay was appropriate without the imposition of a significant bond.

Mr. Barnes presently has several Jesinoski/rescission cases pending across the US, including cases filed in Colorado, Florida, Georgia, and now Tennessee (with Mr. Higgins). Additional actions are being prepared for filing in Wyoming and a second case in Colorado. As this website has published, Mr. Barnes was successful in staving off an eviction in Colorado as a result of the assertion of a rescission defense, which is now the subject of a pending Federal action in Colorado.

Courts in Hawaii and Oregon have recognized the principles of Jesinoski over objection of “bank” attorneys. “Bank” and servicer attorneys continue to refuse to acknowledge the mandatory effects of a statutorily-authorized right of rescission despite the Supreme Court’s Jesinoski decision. Further, the issue of what constitutes “consummation” of a loan remains unresolved, and is a question of state law and does not ipso facto mean the date the loan papers were signed especially where the loan was “table funded” and the true lender was not disclosed. It is only recently that homeowners are starting to discover that their alleged “lender” was not a lender at all, and was in fact borrowing off of commercial warehouse lines and converting the alleged “residential” mortgage loan into a commercial investment transaction without any disclosure to the borrower.

As one expert witness has termed it, the process was “cows in, hamburger out”, meaning that it is impossible to determine who the true “lender” was.

As those of you who follow news in the area of foreclosure law know, there was a recent jury verdict in Texas entered against Wells Fargo for $5.4 million in favor of the homeowners based on findings of fraud and misrepresentation by Wells Fargo and Carrington Mortgage Servicing. The Texas attorneys for the homeowners obtained this verdict through an expert witness who has over 25 years of experience in the mortgage industry and who serves as an expert witness across the United States.

Mr. Barnes’ Firm has teamed up with the homeowners’ expert witness in the Texas case, whose testimony was instrumental in the resulting multi-million dollar jury verdict. The fraud which was engaged in by the “banksters” and perpetrated upon tens of millions of homeowners that is now coming to light through the work of this expert and others is beyond comprehension, and will be exposed in lawsuits which have been filed and which will be filed.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

January 6, 2016

Yesterday, a Colorado Federal Judge upheld a claim for Federal civil rights violations filed by two homeowners against two Douglas County, Colorado Sheriff’s deputies and their supervisor. Jeff Barnes, Esq. represents the homeowners, and appeared in Federal Court in Denver yesterday to argue against a Motion to Dismiss which had been filed by the Defendants.

The Verified Amended Complaint, which was prepared by Mr. Barnes after taking over the case from the homeowners who had been representing themselves pro se, alleges that the homeowners, who were the subject of an eviction, had hired professional movers to remove their valuables and possessions from their home, and that while the movers were engaged in their work, the deputies and a van full of children showed up at the home at which time the deputies directed the professional movers to cease all work and directed the children to go into the home and throw all of the homeowners’ possessions, which included medications and valuables and personal items, into black plastic trash bags and to remove the furniture and throw it out of the home. In doing so, the homeowners’ expensive furniture and possessions were broken and damaged, in certain instances, ruined. The homeowners claim violations of their 4th amendment right to not be subject to an unreasonable seizure of their property, and that the actions of the Defendants resulted in a deprivation of this Constitutional right and thus violation of their civil rights pursuant to Section 1983 of the Federal civil rights laws.

Before filing the Verified Amended Complaint, Mr. Barnes took sworn statements of two of the professional movers who were on the scene while the wrongful conduct took place. Their testimony was consistent with that of the homeowners in the Verified Amended Complaint as to the actions of the deputies, including the deputies’ use and direction of the swarm of children who damaged, destroyed, and ruined the homeowners’ possessions, valuables, and furniture.

The  Motion to Dismiss filed by the Defendants claimed, alternatively, that the action should be dismissed because the law enforcement defendants were entitled to either absolute immunity, quasi-judicial immunity, and/or qualified immunity. The Federal Judge rejected all such claims in denying the Motion to dismiss, stating during the hearing that although the homeowners were the subject of an eviction that they did not give up their 4th amendment rights in their personal property. The case is one of first impression on the facts and the law.

Counsel for the Defendants argued that the deputies were “executing a lawful order”, and thus could not be sued. However, the issue was not whether a lawful order was being executed, but whether the manner of execution of the order was lawful.

At the end of the hearing, the Judge (who is the Federal Judge who tried the Oklahoma City bombing case and sentenced Timothy McVeigh) stated that “This case will go forward”.

Mr. Barnes has now established (at least in Colorado as of yesterday) that a homeowner may, under the proper circumstances, advance a claim for civil rights violations under Section 1983 of the Federal civil rights laws for deprivation of 4th amendment rights against law enforcement officials who act improperly during the course of an eviction.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com