May 17, 2012

FDN’s Jeff Barnes, Esq. has been recently retained to file appeals in cases in Oregon and Minnesota, and will also be appellate co-counsel in an appeal in Montana. The appeals are of adverse summary judgment rulings in cases involving MERS and securitization issues. Mr. Barnes is currently lead appellate counsel on appeals pending in Tennessee, Oregon, and Florida.

Yesterday, Mr. Barnes argued an appeal before the (Federal) 9th Circuit Bankruptcy Appellate Panel on the issue of whether the Bankruptcy Judge erred in failing to sustain the Debtor/homeowner’s objection to an Amended Proof of Claim (POC) filed by US Bank as the claimed Trustee of a securitized mortgage loan trust. The original POC had been filed by Wells Fargo as servicer. The case involves a POC which is grounded upon a “Lost Note Affidavit” which specifically states, under oath, that the transfer is based on a Mortgage Loan Sale Agreement (MLSA). However, the MLSA was never produced and never entered into evidence despite USBank being given multiple opportunities to do so.

The Lost Note Affidavit submitted by USB purports to justify an initial transfer of the mortgage loan in late May of 2006 to one of the interim transferees pursuant to the MLSA which is dated March 3, 2002. Significantly, the Order appealed from recites that the loan was never assigned. There was also no evidence that the transfer to USB complied with the Mortgage Loan Conveyance Provisions of the PSA (for the securitized mortgage loan trust). 

The Bankruptcy Judge sustained USBank’s Amended Proof of Claim absent (a) any evidence of assignment and (b) absent the MLSA (upon which the original transfer was based) being entered into evidence. As to the PSA issue, the Bankruptcy Judge’s position was that the intent of the PSA was to transfer the loan, so it must have taken place.

Mr. Barnes has also just been recently retained in cases in Oaklahoma and New Mexico, and more inquiries are being received from those states.   

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com