March 28, 2016

Fannie Mae (FNMA) admits in its August 30, 2015 Selling Guide, Part B8-7-01, that “Even when MERS is named as the nominee for the beneficiary in the security instrument, it will have no beneficial interest in the mortgage”. Fannie has stood by this position since at least 2007, when it made the same statement in its Selling Guide for 2007, Part IV, page 103, “Naming MERS as Nominee for Beneficiary”.

How then could any foreclosure involving Fannie ever take the position that MERS could act as the beneficiary for purposes of, among other things, executing an Assignment of a Deed of Trust or appointing a Substitute Trustee, which acts may only be undertaken and executed by the true beneficiary?

Jeff Barnes, Esq., www.ForeclosureDefenseNtionwide.com

March 25, 2016

Jeff Barnes, Esq. has been admitted pro hac vice in connection with a foreclosure case in Lincoln, Lancaster County, Nebraska. The case involves issues relating to MERS and the alleged standing of the Plaintiff to foreclose. As those of you who follow this website know, the decision in MERS v. Nebraska Dept. of Banking and Finance was one of the seminal cases establishing what MERS is and is not, and was the case where MERS’ counsel admitted to the Supreme Court of Nebraska that MERS does not own or hold promissory notes, does not lend money, does not extend credit, etc.

Mr. Barnes is also pending admission PHV in Stamford, Connecticut in connection with a foreclosure matter involving Wells Fargo as the claimed trustee of a securitization trust, the defunct American Brokers’ Conduit, and issues of alleged transfer of the loan from the originating lender. Mr. Barnes is scheduled to argue a Motion to dismiss the foreclosure with prejudice at a hearing in the Stamford Court on April 7, 2016.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 23, 2016

The following is a true story.

Wells Fargo filed a foreclosure action in Pinellas County, Florida and allegedly effected service of the Complaint by “publication”. The homeowner resides out of the United States and has for 26 years, as was known to Wells Fargo at all times including from the time the loan was originated through World Savings (which WF claimed to have later merged with). However, Wells Fargo specifically instructed the process server, in writing, not to attempt service at the homeowner’s known address outside of the United States. Wells Fargo thereafter obtained a “default judgment”.

Jeff Barnes, Esq. was retained to attack the Final Judgment, and was successful in having it vacated due to lack of proper service. The Court itself stated at the hearing that the process server’s affidavit stated on it that WF had instructed the process server not to attempt service at the homeowner’s known address, which is a deliberate act in violation of Florida’s service of process statutes.

After Mr. Barnes had filed the Motion to Vacate the Final Judgment thus putting Wells Fargo and its counsel on notice thereof but before a hearing thereon could be scheduled, Wells Fargo sold the property to a third party. The Court ultimately granted the Motion to Vacate. However, WF refused to take any action to void the conveyance to the third party, thus depriving the homeowner of his rightful interest in the property as evidenced by the Court’s vacatur of the Final Judgment.

Wells Fargo’s counsel refused to take any action to remove the alleged new “owner”, and has failed to compensate the homeowner in any respect.

U.S. Bank as Trustee for a private securitization thereafter filed a “new” Complaint seeking to foreclose (again). The homeowner filed a Motion to Dismiss due to a conflict between the allegations of the Complaint and the exhibits attached thereto.

U.S. Bank then “filed” an Amended Complaint through the same law Firm which had represented WF in the prior phase of the action, but did not copy Mr. Barnes with the AMC (just as these same attorneys did not serve the original Complaint on the homeowner). The attorneys then sought a “default”, which they did copy to Mr. Barnes, who notified immediately the attorneys of their failure to copy him with the Amended Complaint. The AMC was eventually forwarded, and Mr. Barnes has, on behalf of the homeowner, filed an Answer and Affirmative Defenses to the AMC and a Counterclaim against U.S. Bank for conversion of the property. The Counterclaim contains a reservation to seek punitive damages against U.S. Bank.

The Amended Complaint claims that U.S. Bank came into an interest in the Note through an alleged “Allonge”.  There is no evidence that the “Allonge” existed at the time the Note was executed and it could not have, as the Allonge is executed by Wells Fargo whereas the Note was in favor of World Savings. The homeowner has alleged that the Allonge was fabricated for purposes of the litigation pursuant to the Wells Fargo Home Mortgage Foreclosure Attorney Procedure Manual, which has been called the “Wells Fargo Fraud Manual” as it instructs WF’s foreclosure attorneys how and when to manufacture documents for purposes of foreclosure when such documents are otherwise missing. The Manual was previously circulated on the web and is readily available.

In an ironic twist, U.S. Bank has named, as a Defendant, the third party who WF sold the property to. It will be interesting to see how this alleged purchaser responds to being sued by the claimed successor of the very bank which sold him the property to begin with.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 15, 2016

Yesterday, a Hamilton County, (Chattanooga) Tennessee Circuit Judge declined to grant summary judgment to FNMA in a post-foreclosure FED (forcible entry and detainer) case based on the homeowner’s assertion of a defense of wrongful foreclosure. The homeowner is represented by Jeff Barnes, Esq. and local Tennessee counsel Fred Clelland, Esq. Mr. Barnes prepared the opposition memorandum, client affidavit, and argued the matter in open court in Chattanooga yesterday.

The homeowner had been defending the case pro se. After losing the underlying foreclosure and the FED portion of the case in Sessions Court, she appealed the FED portion to the Circuit Court and then retained Mr. Barnes and Mr. Clelland.

Bank of America had instituted the underlying non-judicial foreclosure proceeding. FNMA was the successful bidder at the sale. FNMA moved for summary judgment in the FED case on the issue of possession. The homeowner’s affidavit set forth facts which demonstrated that BOA had manufactured a fraudulent foreclosure by failing to credit payments made; refusing to acknowledge payments actually made and retained by BOA; diverted payments to accounts which did not credit the payments to principal and interest; wrongfully increased the escrow requirements without notice as required by the loan documents; and wrongfully forced the homeowner to maintain an escrow account after PMI was removed, which is also illegal.

Mr. Barnes argued Tennessee appellate case law which was practically on point (and which also involved FNMA attempting to obtain summary judgment of possession after purchasing property at a foreclosure sale) which holds that when a homeowner raises a defense of wrongful foreclosure alleging certain facts, there is a question of fact as to whether the foreclosing party passed good title to the purchaser at the sale. Without passing clear or good title, there is no “landlord/tenant” relationship created which would permit a judgment of possession, and there are questions of fact which preclude summary judgment.

The Court thus denied FNMA’s Motion for Summary Judgment. The case now progresses into discovery.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 11, 2016

As those of you who follow this website know, Mr. Barnes and his local counsel have filed Jesinoski-based rescission actions in several states. Pushback from the bankster attorneys has been fierce and arrogant, and in one case in Tennessee, downright nasty and unprofessional. Attorneys for the “bank” Defendant screamed at and threatened Mr. Barnes’ local counsel, claiming “You and that guy Barnes are just going around the country getting people free houses!!!”.

The truth is that Mr. Barnes and his local counsel have, for now going on 8 years, continuously advocated the homeowner’s rights and interests and have steadfastly challenged the banksters’ and servicers’ alleged claims of being the “person entitled to enforce” the Note and mortgage instrument (whether it be a Mortgage, Deed of Trust, or what is called in Georgia a “Security Deed”). As our followers know and as demonstrated by the archives section of this website (to the right), the fight has been long and hard, but we are and will continue to keep fighting against the Wall Street/investment bank goliaths.

No one has ever received a “free house”. The accusation itself is untrue, unless applied to the banksters who, in most of the cases we deal with, are not even the lender and who most likely have been paid more than once and up to perhaps 30 or 40 times over on the Note given the structure of securitizations and tranche assignments when viewed against the portfolio insurances, reserve pools, credit default swaps, and other “protection mechanisms” which insure that the banksters get paid regardless of any claimed “default” on the part of the borrower. The foreclosure proceedings are thus designed to give the downline claimed transferees a “free house” with minimal effort, and after they have already been paid on a Note that they did not even originate.

Jesinoski has opened up a plethora of new legal issues. In fact, in one Motion to Dismiss filed by the “bank” in one of the pending cases, counsel for the “bank” admits that the courts of that state have not addressed the precise issue framed by the complaint. Given the truth of that statement (that the case is in fact one of “first impression” in that state), it all but insures that the non-prevailing party will take any decision to the U.S. Court of Appeals for that jurisdiction, and to the United States Supreme Court thereafter if deemed necessary.

What irks the banksters is that homeowners are demonstrating that they will no longer be treated like cattle to the slaughter, nor can the banksters simply steamroll over and trample upon homeowner’s rights and permit the banksters to continue to perpetrate fraudulent foreclosures. Banksters view homeowner defenses to foreclosures as roadblocks to their business model to obtain “free houses” for little or no cost or effort.

The battle here has just begun.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 3, 2016

Jeff Barnes, Esq. of W.J. Barnes, P.A. was previously retained to defend a foreclosure instituted by Bank of America against a homeowner in a Nebraska foreclosure case. BOA filed a Motion for Summary Judgment (MSJ) which is being argued later this month by Mr. Barnes, who has been admitted pro hac vice to the Lancaster County, Nebraska District Court.

There are several critical issues in the case, including whether MERS had any authority to act at all and especially in light of the Supreme Court of Nebraska’s prior decision in MERS v. Nebraska Department of Banking and Finance, where MERS’ counsel made numerous admissions including that MERS has no interest in promissory notes and disclaimed the authority of MERS to act in certain situations. BOA has attempted to distinguish this case on the basis of a recent decision from the Supreme Court of Nebraska. However, that decision did not involve or raise a specific challenge to MERS’ alleged authority, which was made in the case which Mr. Barnes will be arguing as part of the issues raised by Mr. Barnes in the pleadings and as part of the homeowner’s opposition to BOA’s MSJ.

One of the other central issues involves a “UCC 3-308 challenge”, which is a challenge to the alleged signature of the person whose name appears on the alleged “endorsement” on the Note. Nebraska’s UCC and case law which discuss issues of negotiation raise issues as to whether the party seeking to enforce the Note is a “holder in due course”, and section 3-308 of the UCC applies to “each” signature on a Note without exception in the statute. The homeowner has raised these issues as well through Mr. Barnes.

The ultimate decision on the MSJ at either the trial or appellate level has significant implications for homeowners in Nebraska and other states as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com