September 30, 2011

A Tennessee Federal Judge has issued an Order denying Defendant Bank of America’s “Motion to Reconsider” the Court’s prior Order which denied B of A’s Motion to Dismiss the homeowner’s Complaint for declaratory relief. The homeowner had originally sued B of A in state court claiming that B of A had no interest in either the Note or the Deed of Trust. B of A removed the case to Federal Court and filed a Motion to Dismiss, which the Court denied upon finding that the Court could not find, as a matter of law, whether B of A had legal or equitable rights in either the Note or the Deed of Trust, and could not do so on a Motion to Dismiss.

B of A filed a “Motion to Reconsider”, citing hearsay material about “public knowledge” of B of A’s acquisition of Countrywide, etc., and essentially re-argued the same matters in its Motion to Dismiss. The “Motion to Reconsider” was not grounded upon any of the factors cited in case law set forth by B of A within its own Motion. The Court denied the “Motion to Reconsider”, setting forth its reasoning from its prior Order. Apparently, B of A did not understand the Court the first time.

The homeowner is represented by Jeff Barnes, Esq. and local Tennessee counsel John Higgins, Esq. Mr. Barnes is admitted pro hac vice in the case and researched and prepared both the Response to the Motion to Dismiss and the Response to the “Motion to Reconsider”.

Separately, FDN Maui, Hawai’i counsel James Fosbinder, Esq. has successfully opposed a Motion for Summary Judgment filed by the bank against the homeowner. The same Court has jurisdiction over this case and another case where Mr. Fosbinder represents the homeowner. At a hearing last Friday, the Court cautioned the bank’s counsel in the second case that the issues “are the same issues” as in the case where the Court already denied the bank’s summary judgment motion.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com