September 11, 2013

We have been waiting on several rulings from recent hearings around the US, many of which appear to have been delayed by the Labor Day holiday and the end of the summer season. Now that these events have passed, the rulings are coming in.

A Washington County, Pennsylvania Judge has denied a Motion for Summary Judgment filed by USBank as the claimed “trustee” of a Bear Stearns securitization. The case involves a claimed MERS assignment to USBank. The homeowner is represented by Jeff Barnes, Esq. and local Washington County, PA counsel Stephen Taczak, Esq. Mr. Barnes provided the legal arguments to oppose the motion for summary judgment.

An audit obtained by the homeowner was performed by a former Director of Loan Administration for Encore Credit Corporation and New Century Mortgage. The auditor conducted an exhaustive investigation and concluded that the MERS assignment was “a valueless and faulty attempt by MERS to assign the mortgage to USBank as Trustee” in part because the claimed assignment was in excess of four years after the Closing Date of the Trust.

This conclusion is bolstered by the recent Glaski case from the California Fifth Appellate District. Pennsylvania does not currently have any appellate law on the alleged authority of MERS to assign a Note to which it was not a party to a securitized mortgage loan trust, or any authority of MERS to assign a loan which is in default to a trust. As such, the Pennsylvania court may, as in most states, look to the law of other jurisdictions which have dealt with the issues for guidance.

Summary Judgment was also denied by the Circuit Court for Santa Rosa County, Florida in a case filed by Wells Fargo Bank as the claimed “trustee” of a 2007 securitization where the original lender, New Century, had been bankrupt years before the case was filed. Wells Fargo presented no evidence of any authority from the Bankruptcy Court that MERS, as the claimed “nominee” of the bankrupt New Century, had authority to assign anything mid-July of 2010 given the Bankruptcy of New Century in 2007. The homeowner is represented by Jeff Barnes, Esq. who briefed the opposition to the summary judgment motion and personally argued the matter in the Santa Rosa County Circuit Court.

This ruling is consistent with other cases where Mr. Barnes represents the homeowner and in which there is an alleged MERS assignment years after the New Century Bankruptcy, including a case in Hawaii where Mr. Barnes caused summary judgment to be denied on the very issues in the Santa Rosa County, Florida case.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com