Victories in Washington and Oklahoma: one summary judgment vacated, another (second) summary judgment denied

December 18, 2019

Jeff Barnes has successfully vacated a summary judgment in Tacoma, Washington and caused a second summary judgment motion to be denied in Oklahoma City. Both cases involve Wilmington Savings Fund Society securitizations.

In the Tacoma case, the Plaintiff filed a Motion for Summary Judgment. Shortly thereafter and just before the hearing on the motion and unknown to the homeowner at the time, the homeowner’s local counsel was suspended from the practice of law. Local counsel was to have opposed the MSJ and attended the hearing as Mr. Barnes (PHV co-counsel for the homeowner) was scheduled to be in trial in another case.

The local counsel did not request a continuance of the hearing; did not advise the Court of her suspension; and did not appear at the hearing. The Court granted the MSJ despite the homeowner’s pro se request at the hearing that it be continued as her attorney did not appear and did not advise the homeowner that she (local WA counsel) would not be appearing.

Mr. Barnes and the client only thereafter learned of the suspension of local counsel from opposing counsel in another foreclosure case where the same (suspended) local counsel was representing a homeowner. The Tacoma homeowner thereafter obtained new local WA counsel, and Mr. Barnes immediately filed Motions to vacate the summary judgment based on the exceptional circumstances of the (suspended) local WA counsel (a) failing to notify the client or the court of her suspension; (b) failing to request a continuance of the hearing so that the client could obtain new local counsel; and (c) failing to prepare any papers to oppose the MSJ prior to her suspension.

The Court granted Mr. Barnes’ Motions finding that the circumstances constituted the type of exceptional circumstances which warranted relief pursuant to CR 60(b).

Yesterday, an Oklahoma City District Court Judge denied the Plaintiff Wilmington Savings Fund Society’s second Motion for Summary Judgment. A prior MSJ had been filed and opposed by Mr. Barnes. The Plaintiff never requested a hearing on the first MSJ and simply filed a second MSJ.

The Judge who heard the MSJ granted it without permitting Mr. Barnes to present his case; made a decision not based on the law; and took the position that “your client owes somebody money, right?” Mr. Barnes filed a Motion for Reconsideration of this ruling, which was granted by the new Judge who took over the case.(See our post of October 4, 2019 below).

Yesterday, Mr. Barnes re-argued the MSJ detailing the numerous genuine issues of material fact presented by the Plaintiff itself and the controlling Oklahoma law including that related to allonges (as there is no endorsement on the Note and Wilmington started with one allonge when the case was filed and added 3 more as the case progressed, and as Oklahoma has an allonge statute). The Judge denied the MSJ and has ordered discovery to proceed.

Jeff Barnes, Esq.,