February 26, 2016

The telephones in our California branch office are experiencing problems as they are not getting power. Incoming calls can leave messages, but we cannot call out. Our telephone carrier has advised us that it is not a problem on their end, and that it is some internal problem with the source which supplies the independent power to the phones, which is separate from the general electrical system in the office building. We have a tech coming in to address this ASAP. Please e-mail us if you cannot get through via phone.

Jeff Barnes, Esq.



February 18, 2016

This morning, the Supreme Court of California issued its very detailed and extremely well articulated 30-page decision in the matter of Yvanova v. New Century Mortgage, Supreme Court case number S18973, which approved Glaski (which permits borrowers to challenge void assignments) and disapproved the Jenkins/Gomes line of cases, which had not permitted borrowers to ever challenge assignments under any circumstances on the “not a party to the assignment” theory. The decision was unanimous, meaning that all seven Justices of the Court agreed with the result with no dissent.

The Court stated that Jenkins painted the brush “too broadly”, and failed (like several unreported Federal court decisions) to recognize the legal distinction between a challenge to a void assignment and one which was merely voidable. On that issue, the Court defined a “voidable” type challenge as one where the borrower was attempting to enforce the terms of the instrument of assignment, which is distinctly different than taking the position that the assignment could not have occurred and was thus void and transferred no interest (the former not being permissible while the latter is).

The opinion held that only the entity holding the beneficial interest under the DOT (which is either the original lender or the assignee or agent thereof) may instruct the trustee to commence and complete a nonjudicial foreclosure, and that by not permitting homeowners to challenge a void assignment that they would be deprived of the means to assert their legal protections and are thus permitted to challenge the foreclosing entity’s status as the “mortgagee”. The opinion relied heavily upon the Culhane decision from the U.S. Court of Appeals for the 1st Circuit (which has jurisdiction over appeals of Federal cases in the Northeastern US), which also permits borrower challenges to assignments. The task is now to get the rest of the courts in the US to understand and adopt the proper position which has been taken by appeals courts on both coasts, and to prove that MERS cannot be the agent or assignee of the Note for the lender where, as here, MERS purported to act for a bankrupt entity years after that entity ceased to exist.

The opinion did not take any position on whether a post- (securitization) trust closing transfer is a void assignment (thus leaving the issue open), and did not preclude the advancement of a claim to seek to preclude a nonjudicial foreclosure before it takes place. The opinion states very clearly that its holding was narrow, and is confined to permitting a homeowner to assert a cause of action for wrongful foreclosure after the sale has taken place based on a void assignment, as that was the point that a real injury had manifested and thus the homeowner has standing to seek redress for that injury.

The Court held that the fact questions surrounding the assignment were not before the Court. The effect of this is that the Court understood that there are questions of fact surrounding whether an assignment is void, and thus the opinion should be able to be used to successfully defeat Motions for Summary Judgment on the issue of whether an assignment is void.

The anti-Glaski pundits and those who took the position that Glaski was an “outlier” decision have now been silenced (the same thing which happened in Oregon when the homeowners’ victory against MERS in the Niday case in the Oregon Court of Appeals was similarly characterized, which stopped when the Supreme Court of Oregon unanimously approved the court of appeals’ decision). The “broad brush” courts which have taken the erroneous position that a borrower may never challenge an assignment under any circumstances have now been shown how they are wrong. The bank and servicer attorneys who had relied upon Jenkins, Gomes, and the other cases which gave rise to the the per se rule of no standing of a borrower to challenge an assignment are now on notice that this is NOT the law in California.

Many people across the US have been anxiously awaiting this opinion, which one of our California network counsel provided to us this morning. A copy of the full opinion is available upon e-mail request.

Jeff Barnes, Esq.,


February 17, 2015

A second Florida Circuit Court has dismissed a foreclosure case involving America’s Wholesale Lender, finding that AWL did not exist; did not assign the mortgage; was not a licensed mortgage lender in Florida in 2005 or thereafter; and did not have authority to do business in Florida under F.S. 607.1506.

The Judgment Granting Defendant’s Motion for Involuntary Dismissal based on these facts was entered on February 12, 2016 in the matter of U.S. Bank, National Association, as Trustee for the Holders of CSFB ARMT 2005-6A v. Dimant, Florida 19th Judicial Circuit (St. Lucie County) Case No. 2013-CA-001130.

The Court also found that the alleged Assignment of Mortgage by MERS was invalid because MERS had no authority to assign ownership of the mortgage as MERS was not the owner and was only a nominee of the non-existent AWL, and thus the assignment was without authority and therefore invalid.

Significantly, the Court also found that the “alleged undated blank endorsement” by Countrywide doing business as AWL “is a direct violation of Florida Statute 677.501(1)(a) which provides that the document must be first negotiated by the named person’s indorsement and delivery.” The Court further found that the Plaintiff (US Bank) provided no evidence that Countrywide ever received the loan documents to accomplish a legal transfer of the loan as required by F.S. 673.2011, and that no evidence was provided by the Plaintiff of the relationship between AWL and Countrywide or BOA.

The Court concluded that US Bank had no standing to bring the action and all failed to meet all conditions precedent to bringing the action. The Court also found that the homeowners were the prevailing parties and reserved jurisdiction to hear motions for attorneys’ fees and costs.

This case was decided on practically the identical facts of the Bank of America v. Nash decision previously published on this website. Thus, as of this week, two separate Florida Circuit Courts have now dismissed foreclosure actions involving the non-existent AWL as the alleged “lender”.

We thank one of our dedicated readers for bringing this important decision to our attention today. A copy of the Judgment is available upon e-mail request.

Jeff Barnes, Esq.,


February 12, 2016

Early this morning, a Santa Rosa County, Florida Circuit Court Judge granted the homeowners’ Emergency Motion for a stay of enforcement of a Writ of Possession (eviction) following the homeowners’ filing of a Sworn Motion to Vacate a Final Judgment of foreclosure due to fraud upon the court by Wells Fargo Bank, N.A. as the claimed “trustee” of a New Century securitization trust. The eviction was to take place later today.

The Sworn Motion was supported by a 34-page Affidavit of Marie McDonnell, the expert witness who was instrumental in the $5.4M jury verdict in Texas against Wells Fargo and the servicer where the jury found that Wells Fargo had engaged in fraud. The Florida case and the Texas case both involved New Century as the alleged “lender”, and in both cases Wells Fargo sought to foreclose.

Mr. Barnes represents the homeowners, prepared the Sworn Motion, and argued the Emergency Motion for stay this morning.

The McDonnell Affidavit was the product of five weeks of intensive research which revealed that New Century never owned or funded the loan, and concluded that Wells Fargo was aware of these and other facts but withheld these facts from the homeowners and the Court, thus having procured the Final Judgment through fraud. The investigation revealed that the homeowners’ loan was funded and owned by UBS Real Estate Securities, Inc. which Ms. McDonnell discovered after conducting an intensive investigation into the New Century bankruptcy where UBS had filed an adversary proceeding against New Century and where there were repurchase agreements in place. The investigation revealed that at all times, UBS Real Estate Securities both funded and owned the homeowners’ loan, and that New Century never lent any money to the homeowners despite claiming to do so in the Note and Mortgage.

Throughout the 4-year state court foreclosure case, Wells Fargo had consistently taken the position that it owned the loan by virtue of it being transferred to Wells Fargo from New Century. This position has been proven to be false from the beginning. Wells Fargo had also taken the position that it had the original Note, when in fact documents discovered by Ms. McDonnell showed that Deutsche Bank was the custodian of the loan documents and there was no evidence of any relinquishment of the documents from Deutsche Bank to Wells Fargo.

Ms. McDonnell did a side-by-side comparison of the facts in the Texas case and the Florida case, and found the fraud in the Florida case, which involved a private securitization, to be even more egregious than the fraud found in the Texas case where the jury awarded the homeowners $5.4M which was assessed against Wells Fargo and the servicer.

A specially set 2-hour hearing is being scheduled on the merits of the Sworn Motion to Vacate the Final Judgment, which attaches a copy of the homeowners’ separately filed Federal rescission action which was also prepared by Mr. Barnes.

Jeff Barnes, Esq.,


February 11, 2016

Jeff Barnes, Esq. has been retained to file and has filed TILA rescission actions in the Federal courts of Florida, Colorado, and Tennessee. As those of you who follow this website are aware, Mr. Barnes has successfully staved off an eviction in Colorado by asserting a Jesinoski rescission defense, as has FDN’s local counsel in Tennessee based on the filing of a rescission Complaint prepared by Mr. Barnes. Other such actions are presently being prepared for filing in Hawaii and Arizona.

Mr. Barnes has also been retained to file Loan Enforcement Determination (LED) actions in various states, demonstrating the evolution of mortgage lending cases from strict foreclosure defense to offensive claims. Mr. Barnes has also recently filed an action for rescission and various fraud-based claims against Wells Fargo Bank in Federal court in Florida pursuant to Jesinoski and Florida law which is supported by the detailed findings of fraud made by Marie McDonnell, the expert witness who was instrumental in the recent $5.4M jury verdict against Wells Fargo in Texas which case bears striking similarities (including the same alleged “original” lender, that being the long-bankrupt New Century Mortgage) to the Texas case.

Mr. Barnes is also currently in a trial in Oregon involving whether America’s Wholesale Lender (which a Florida Judge found, after a full trial and pursuant to sworn testimony of a witness from Bank of America not to have existed), ever transferred any interest in either the Note or the Deed of Trust to the Bank of New York as the claimed “trustee” of a securitization trust. A separate rescission action based on the non-existence of AWL (and thus no legal loan having ever being “consummated” with the non-existent alleged “lender”) is also being filed shortly in Federal Court in Colorado by Mr. Barnes’ Firm.

Jeff Barnes, Esq.,