September 1, 2011

Jeff Barnes, Esq. has been admitted pro hac vice to the Superior Court in and for Sussex County, Delaware in connection with a foreclosure action brought by Bank of New York Mellon as alleged trustee for a First Horizon securitized mortgage loan trust. BONY claims to have succeeded to the rights to the mortgage loan through MERS “as nominee” for First Horizon. The MERS and securitization issues are presently unresolved in Delaware as they are in many other states.

In Michigan, the Judge having juridsiction over the Hendricks decision, where Mr. Barnes and his local counsel James Fraser, Esq. prevailed on summary judgment against US Bank for its failure to comply with the PSA in allegedly transferring the homeowners’ loan to the securitized mortgage loan trust, has denied USB’s Motion for Reconsideration of the summary judgment ruling. The details of this decision were previously published on this website. 

The Hendricks decision was based in part on the same legal principles set forth in the Horace decision from Alabama which also granted summary judgment to the homeowner, finding not only that there was a failure to comply with the PSA in connection with the claimed transfer of the mortgage loan to the securitized trust, but also holding that the homeowner was a third party beneficiary of the PSA.

Mr. Barnes is also lead appellate counsel of an appeal pending in the Oregon Court of Appeals on the issue of MERS’ claimed status and authority, which is also unresolved on the appellate level in Oregon although there are Oregon trial, Federal, and Bankruptcy court opinions on the matter which are divergent. It appears that the appeal pending which has been filed by Mr. Barnes and his local Oregon counsel Elizabeth Lemoine, Esq. is the first Oregon appellate case which will hopefully resolve the issues surrounding MERS’ claimed status as a “beneficiary” and the claimed ability of MERS to assign notes and Deeds of Trust, appoint “Successor Trustees”, and otherwise undertake actions to further foreclosures.

Such actions are in direct contradiction to the MERS Terms and Conditions published by MERS itself (which have been produced in discovery in cases in Oregon where Mr. Barnes and Mrs. Lemoine represent the homeowners), which Terms and Conditions expressly preclude the use of the MERS system to either create or transfer beneficial interests in mortgage loans. MERS’ actions in attempting to assume a transferable interest in a note which it did not own or originate and transfer beneficial interests in Deeds of Trust are also directly contradictory to the restrictions on MERS’ authority arising out of representations of MERS’ own counsel set forth in the MERS v. Nebraska Dept. of Banking and Finance case from the Supreme Court of Nebraska.

The Oregon Trial Lawyers Association has filed an amicus Brief in support of the position taken by the homeowners represented by Mr. Barnes and Mrs. Lemoine. 

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com