January 26, 2012

The issue of whether MERS can be a “beneficiary” under the Oregon Trust Deed Act was argued by Jeff Barnes, Esq. in the Oregon Court of Appeals in Salem, Oregon on January 17, 2012. Mr. Barnes, admitted pro hac vice, represents the homeowners who appealed an adverse summary judgment ruling which was entered in the course of their action to challenge a non-judicial foreclosure. Although Federal and Bankruptcy courts in Oregon had, at the time of the summary judgment hearing, found that MERS was not a beneficiary in construing the Act, the pro tem trial court’s position as the Oregon decisions was: “not in my book”. The appeal is the first of its kind requesting an appellate determination in Oregon as to whether MERS can legally be a “beneficiary” under the Act.

Mr. Barnes also represents homeowners who are filing an action for damages under Washington’s post-foreclosure remedies statute, which permits homeowners to file claims for damages arising out of fraud and misrepresentation; failure of a trustee to comply with the Washington Deed of Trust Act; and certain other circumstances. There is no appellate case law in Washington as to the requirements for pleading a cause of action under the statute or how damages are quantified. The case will thus seek court determinations on these issues. Local counsel John Sterbick, Esq. will be working with Mr. Barnes on the case.

We have also been receiving many inquiries relating to the now infamous loan mod scam where the bank or servicer tells the homeowner that they have to be three months behind in their payments in order to be considered for a loan mod, but thereafter tell the homeowner that they cannot be considered for a loan mod because they are in default and have been referred for foreclosure. Of course, the “bank” or servicer never puts the requirement in writing, so they can later deny it and claim “statute of frauds” as a defense. The fact that this same modus operandi has been used by different “banks” and servicers in so many different states to manufacture homeowner defaults tells us that this is a well-entrenched pattern of fraudulent activity on the part of the “banks” and servicers to concoct fraudulent foreclosures.

Per a prior post, Mr. Barnes has already filed one action in Florida against Bank of America arising out of this scam, and he will shortly be filing a second action in Colorado where the same scam was perpetrated upon the homeowner by Citimortgage. In view of the number of inquiries we receive on this issue, we expect more such lawsuits to be filed in the near future.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com