August 23, 2011

A Tennessee Federal court has issued an Order and Memorandum denying a Motion to Dismiss filed by Bank of America which attacked the borrower’s action, brought under Tennessee’s version of the Uniform Declaratory Judgments Act, challenging B of A’s claimed “ownership” of a mortgage loan. The loan was originated by America’s Wholesale Lender, a claimed “dba” of Countrywide. B of A later claimed to have succeeded to ownership of the loan, but thereafter made inconsistent statements concerning the alleged ownership, although the transfer of the loan was purportedly made from the originating lender to B of A within 120 hours of closing.

The borrower had filed suit in state court. B of A removed the case to Federal court.

B of A claimed that there was no “actual controversy” as Countrywide was a subsidiary of B of A, and that Countrywide was “DBA” America’s Wholesale Lender. The Court found that there was nothing in the papers filed by B of A demonstrating that this was in fact the case; that there was nothing in either the Note or the DOT which even mentioned Countrywide; and the Court could thus not determine whether B of A in fact had any interest in the loan.

Jeff Barnes, Esq. (admitted pro hac vice) and local Tennessee counsel John Higgins, Esq. represent the borrower.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com