February 7, 2012

A Sussex County, Delaware Court has entered an Order finding that Bank of New York Mellon as Trustee of a First Horizon securitized mortgage loan trust failed to comply with the Court’s prior order compelling discovery, and has also assessed sanctions against BNYM for the the homeowner’s having to bring a Motion for Sanctions against BNYM for violation of the Court’s discovery Order. The Order also provides that if BNYM continues to not comply with the prior Order that the case will be dismissed with prejudice.

The homeowneer is represented by Jeff Barnes, Esq. and local Delaware counsel Paul G. Enterline, Esq. We believe this to be the first case in Delaware where securitization-related discovery is being compelled under the threat of a dismissal with prejudice for noncompliance with a prior discovery order. Mr. Barnes has already had several foreclosure cases dismissed in Florida and New Jersey for a foreclosing Plaintiff’s failure to comply with discovery, and he has also obtained court orders assessing attorneys’ fees against “banks” for noncompliance with discovery.

The foreclosing Plaintiff styles itself as the trustee for a series of pass-through certificates by a division of a Tennessee bank “Master Association” in its capacity as trustee under a Pooling and Servicing Agreement and assignee of MERS. As such, all issues as to the securitization including the PSA and MERS’ involvement are implicated by virtue of the Plaintiff’s self-chosen denomination.

It is common knowledge that Joseph Biden III, the Attorney General of Delaware, has sued MERS in a 91-page Verified Complaint sounding in deceptive trade practices which have lead to improper foreclosures. We expect many of the issues in the Biden lawsuit to be raised in the Sussex County litigation.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com