June 18, 2012

The past two weeks have seen positive strides in foreclosure defense, especially the compelling of securitization discovery and permitting borrower attacks on foreclosures.

A Florida Judge denied summary judgment in Duval County, Florida where the corporate borrower had been representing itself and had filed responsive pleadings late. The foreclosing party sought a court default and summary judgment, but the Court denied both Motions and granted the Motion filed by Jeff Barnes, Esq. (who represents the borrower) to vacate any default and to serve an Answer to the Complaint. Another Judge in Osceola County, Florida compelled discovery sought by Mr. Barnes in another securitization case over the objection of the foreclosing Plaintiff.

In a case pending in New Jersey where the Court had compelled the foreclosing Plaintiff to produce securitization discovery four (4) separate times, the Court dismissed the action after the subject discovery was not produced. The foreclosing Plaintiff has sought to reinstate the case, arguing with the Judge that it should not be compelled to produce the discovery that the Court has already ordered four (4) separate times. The Court has ordered that the discovery, including depositions, be completed by a date certain or the case will wind up being the first foreclosure case in New Jersey which is dismissed with prejudice for repeated discovery violations. The borrowers are represented by Jeff Barnes, Esq. and local NJ counsel Daniel Schmutter, Esq.

Several of the “banks” are utilizing removal of state court cases to Federal court in an apparent effort to stave off discovery obligations incident to the borrower’s state court discovery. These “banks” are just delaying the inevitable, especially in light of a recent decision from the New Hampshire Federal Court which held that if a purported assignment does not comply with the PSA, there was no assignment. In distinguishing cases which do not permit an “attack” on an assignment, the Court held that if there is no assignment in compliance with the (securitized trust) documents, then no assignment occurred, and as such the argument is not that there is an attack on an assignment, but that no assignment took place at all.

A Florida appellate court has also reversed summary judgment where court-ordered securitization discovery, including all documents referred to or attached to the PSA, were not produced.

We thank our readers for providing us with these new decisions.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com