October 4, 2011

Wells Fargo has voluntarily dismissed a foreclosure action in Iowa after the state Court Judge denied Wells Fargo’s Motion for Summary Judgment and set the case for trial. This case, which began in 2005, has been discussed several times on this website throughout its interesting history.

The homeowner, who had originally represented herself, had been told by Wells Fargo back in 2005 that Lehman Brothers was the “investor” on the loan. Notwithstanding this issue relating directly to chain of title to the note and mortgage and the ability of the servicer (WF) to foreclose, the Court granted summary judgment to WF in 2005, which it later vacated in 2010 after WF brought Lehman into the case as a party Defendant and made certain admissions as to lack of ownership of the mortgage loan. The Court was concerned as to many issues, including how WF could claim under oath in 2005 that it owned the loan but admitted in 2010 that it did not and that the Note was lost, with WF not knowing the details as to the “loss”.

WF nonetheless moved for summary judgment a second time in 2011. The homeowner asserted numerous disputed issues of material fact, including the failure of WF to file or record any Assignment pursuant to a Servicing Agreement between WF and Lehman; failure of WF to demonstrate compliance with the Seller’s Warranties in the Servicing Agreement; failure to demonstrate compliance with the Custodial Agreement; Plaintiff’s admission that it has no knowledge of the true and present owner of the Note; failure to offer any proof as to when the Note was lost; failure to identify the nature and extent of admitted interests in the Note on the part of a Lehman securitized trust; infirmities in WF’s “Affidavit” of the “Default Litigation Specialist”; and failure to satisfy Iowa Code Sec. 554.1201 (relating to proof requirements in lost note claims).

The Court issued a written opinion denying WF’s second Motion for Summary Judgment. The case was thereafter set for trial. Today, the Notice of Voluntary Dismissal was received.

The homeowner is represented by Jeff Barnes, Esq. (who was admitted pro hac vice in the case and prepared the opposition to WF’s second Motion for Summary Judgment) and local Iowa counsel Christine Sand, Esq. of the Beverly Wild Law Office.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com