January 12, 2012

We previously advised on this website that in a case pending in the Tennessee Federal Court where the homeowner is represented by Jeff Barnes, Esq. and local counsel John Higgins, Esq. that Defendant Bank of America’s Motion to Dismiss the Plaintiff’s Complaint for Declaratory Relief was denied, as was a subsequent Motion by BOA for the Court to “Reconsider” its denial of BOA’s Motion to Dismiss. The Court determined that BOA had not shown that it owned the Plaintiff’s mortgage loan despite alleging that it purchased the loan in 2005. Defendant BOA took the position that it owned the loan throughout the motion stage of the litigation, with the Motion to Reconsider having been denied on September 29, 2011.

However, just over one month later on November 3, 2011, counsel for Defendant BOA admitted to Plaintiff’s counsel, in an e-mail, that “The Bank of New York Mellon, N.A. is the current holder of the Note.” There was no information, however, as to (a) when Bank of New York came into ownership of the Note; (b) by what manner, means, or vehicle BONY came into ownership of the Note; (c) under what circumstances BONY came into ownership of the Note; or (d) when BOA knew that BONY was the alleged owner of the Note.

The Plaintiff is filing a Motion to amend his Complaint to now add BONY as a Defendant. The Amended Complaint also contains a claim for unjust enrichment to the extent that any payments made to Defendant BOA by Plaintiff which were not legally entitled to be demanded or retained by BOA, and any payments which were transferred to BONY without any authority, be returned to the Plaintiff. The Court in a pending case in California (the Javaheri case) has previously determined that the Plaintiff may state such a cause of action to the extent that any payments made to a third party (who was not the original lender) under circumstances where there was no right for that third party to demand or accept payments from the homeowner gives rise to a claim for unjust enrichment.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com