May 3, 2011

Last Thursday, April 28, 2011, FDN attorney Jeff Barnes, Esq. obtained another dismissal of a foreclosure and  awards of attorneys fees against two banks in cases in Lee County, Florida. Two other cases were removed from the “rocket docket” and are being sent back to the presiding Judge for hearings on objections asserted by the foreclosing plaintiff to Mr. Barnes’ discovery requests. Courts in Florida, New Jersey, and Oregon have already compelled this same discovery to be produced in cases where Mr. Barnes is representing the borrowers, and dismissals of foreclosures have been the sanction in cases in New Jersey and Florida where the foreclosing plaintiff has not complied with the discovery and orders compelling the documentary discovery. Two of the cases in New Jersey were dismissed without even a Motion to Compel pending, which is a clear signal that Judges are not going to tolerate a foreclosing plaintiff’s noncompliance with a borrower’s discovery.

In Washington, a Federal Judge in a case which was filed in state court by a borrower challenging a foreclosure but which was removed to Federal court has issued an Order which has stayed a foreclosure involving a securitization and MERS pending the resolution of a certified question to the Washington Supreme Court as to MERS’ authority and claim to be a “beneficiary” under the Washington Deed of Trust Act. The Order also extended the state court injunction against any foreclosure, and also stated that the plaintiff may have a cause of action for breach of duty of good faith against the trustee sale company.

The plaintiff had asserted a claim for breach of fiduciary duty against the company which was rejected by the Court, but the Court’s Order opened the door to a claim for breach of duty of good faith against the trustee sale company. This ruling is the first of its kind that we are aware of that permits a borrower to assert a direct claim for breach of duty against the trustee sale company. We are utilizing this recent ruling in our Washington-based cases involving securitizations and MERS to likewise request a stay of any foreclosure pending the resolution of the certification issues in the Washington Supreme Court.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com