November 21, 2016

Motions for leave (permission) to file amended claims against “banks” seeking to foreclose have been granted in cases in Hawaii and Oregon in the last 4 days. The homeowners are represented by Jeff Barnes, Esq. of W. J. Barnes, P.A., together with local counsel in each state.

In the Hawaii case, the homeowners had been proceeding pro se, and HSBC Bank as Trustee for a securitization trust had filed a motion for summary judgment. The homeowners sought leave to amend their Answer and affirmative defenses, which motion was vigorously opposed by HSBC’s counsel (who Mr. Barnes had previously prevailed against by defeating motions filed by that Firm). The Court, after extensive argument, granted the homeowners’ motion last Thursday, which now permits them to advance new theories of defense which Mr. Barnes’ Firm has developed and which have not been previously litigated in Hawaii.

Today, an Oregon Circuit Judge also granted the homeowners’ motion to amend their original Complaint, which was filed in 2010 to defend against what was then a non-judicial foreclosure instituted by GMAC mortgage. MERS, which was a defendant in the case, prevailed on summary judgment. The homeowners appealed and prevailed at both the Court of Appeals and Supreme Court levels in what has become known as the “Niday case”, which held that MERS is not a beneficiary of the Deed of Trust despite claiming to be so. Jeff Barnes, Esq. of W. J. Barnes, P.A. represented the homeowners in both of the appeals, and in the hearing today.

The Court’s ruling today permits the homeowners to pursue a new theory of defense developed by Mr. Barnes’ Firm against U.S. Bank as the claimed “trustee” of a securitization trust, despite the fact that it has failed to explain how the enforceable interest in the Note and DOT went from GMAC Mortgage (which filed for Bankruptcy in May of 2012) to U.S. Bank.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

November 4, 2016

Per our prior post, the Colorado Supreme Court is holding a public hearing on proposed changes to CRCP 120, which governs the institution of non-judicial foreclosures, on the afternoon of Thursday, November 10, 2016. Mr. Barnes will be speaking at this hearing. Several homeowners groups will also be in attendance.

CRCP 120, notwithstanding subpart (d) which permits the filing of an independant action to challenge a foreclosure upon the issuance of an Order Authorizing Sale (OAS) following a CRCP 120 hearing, has a host of problems both procedurally and substantively. It is only one of two “probable cause” type proceedings in the entire United States which permit the scheduling of a foreclosure sale in the context of a non-adversarial, quasi-administrative proceeding with no benefit of discovery; a presumption in favor of the foreclosing party; and a “guilty until proven innocent” structure.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

November 1, 2016

A Colorado (state) District Court has entered an Order which has upheld three affirmative defenses to a Forcible Entry and Detainer (FED/eviction) action. Jeff Barnes, Esq. represents the homeowners, who have been battling Citibank as the securitization trustee claiming to have inherited rights to the Note and Deed of Trust on a loan which was originated by a third party.

Citi prevailed in the underlying CRCP 120 action, which is Colorado’s “probable cause” procedure to begin the non-judicial foreclosure sale process. The Rule provides for the filing of a separate action to contest any Order Authorizing Sale entered as a result of a 120 proceeding. As those of you who follow this website know, Rule 120 is under attack, and Mr. Barnes will be speaking at the hearing on proposed changes to the Rule in Denver on November 10.

Citi later filed a FED action, to which the homeowners raised several affirmative defenses. FED cases are heard by the County Court. The County Court Judge determined that he was without jurisdiction to determine the merits of the asserted affirmative defenses, and stayed the FED action pending a determination on the merits of the defenses by the “District Court”. As several of the defenses were based on state law, the homeowners filed an action for Declaratory Relief and Quiet Title in the state District Court for a determination of the merits of the defenses. Citi filed a Motion to Dismiss that action.

Yesterday, the District Judge denied Citi’s Motion to Dismiss as to three of the five affirmative defenses, which sound in issues relating to an undetermined tenant in common interest as to one of the homeowners; no clear chain of title as to the loan; and that the loan is owned by a third party. The District Court ordered Defendant Citi to file an Answer to those defenses and to the remainder of the Complaint.

The first defense related to the (then) lack of a ruling on the homeowners’ objection to sale, which was denied. The fifth defense is a procedural defense: that issues as to title must be resolved before issues of possession are determined in a FED action. This is why the County Court Judge stayed the FED case: so that the merits of the “title” related issues could be adjudicated first (which is the law in Colorado).

The homeowners will now proceed to discovery on the issues arising out of the preserved defenses, two of which relate directly to the alleged standing of Citi to do anything.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com