May 19, 2014

A preliminary injunction has been entered precluding Bank of New York Mellon (BNYM), as trustee of a securitization trust, from attempting to continue with post-foreclosure proceedings in a situation where the MERS Assignment attempted to transfer the interests in the DOT to BNYM over a year after the original lender went out of business. The homeowner is represented by Jeff Barnes, Esq. and local Tennessee counsel John F. Higgins. Esq. Mr. Barnes drafted the Complaint, Affidavit, and Motion for a TRO and Preliminary Injunction, while Mr. Higgins argued the matters in court.

BNYM claimed to have acquired the right to enforce the DOT by virtue of two (2) MERS Assignments, the first of which attempted to assign the DOT 14 months after the original lender ceased business operations. MERS then, two years and 7 months thereafter, attempted for a second time to assign the DOT to BNYM. MERS listed the maximum principal indebtedness, for purposes of the Tennessee Recordation Act on this Assignment, as zero, thus arguably admitting that the loan had been paid off prior to the Assignment.

MERS also “substituted” the original trustee, and in the Appointment of Substitute Trustee claimed that the homeowner had executed the DOT “payable to the order of MERS”, which is a complete falsehood as MERS never, ever, lends money; does not extend credit; is never owed any money; and does not collect any money on mortgage loans as admitted by its own counsel in numerous reported decisions nationally.

The homeowner filed a Complaint for Wrongful Foreclosure, Injunctive Relief, and other relief. The Court originally granted a TRO against any further disposition of the property and today granted a preliminary injunction finding that (a) BNYM faled to respond to the allegation of the TRO Motion and (b) the MERS Assignments were attempts to transfer an interest years after MERS would have been permitted to do so.

This decision is important as it is based, in part, on the fact that the MERS Assignments were executed years after the original lender, for whom MERS claimed to be the “nominee”, was out of business. This decision thus shows that MERS has no authority to act as a “nominee” for a defunct entity.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com