July 24, 2014

A trustee’s (foreclosure) sale has been stopped in Davidson County, Tennessee with the entry of a Temporary Restraining Order on Motion filed by the homeowner against Nationstar Mortgage LLC, MERS, and the law Firm acting as the substitute trustee. The homeowner is represented by Jeff Barnes, Esq. and local Tennessee counsel John Higgins, Esq., who also recently stopped another sale in Tennessee on a case where he and Mr. Barnes were retained (see webpost of May 19, 2014)

The original lender had been sold to Discover Bank in 2012. Two years later, MERS attempted to assign the Deed of Trust (DOT) to Nationstar, which advised the homeowner in 2013 that the “servicing” of the loan had been transferred to Nationstar from Bank of America (BOA). Nationstar did not identify the owner of the loan. The MERS Assignment also purported to transfer the Note. It is well known that MERS never originates loans and does not own promissory notes, and as such it cannot transfer something it does not own.

The Complaint and Motion for Temporary Restraining Order and Preliminary Injunction filed by the homeowner (prepared by Mr. Barnes at the request of Mr. Higgins and the homeowner) set forth that the Court of Appeals of Tennessee had issued a decision in January of 2014 holding that MERS has no independent interest in real property or any protected interest in real property, and as a “nominee” only holds “bare legal title”. The homeowner thus alleged that the MERS Assignment was a legal nullity and Nationstar was thus precluded from foreclosing.

The Court initially set the bond to stop the sale at $90,000.00, but on request of Mr. Higgins, reduced the bond amount to just over $900.00 as there was no evidence that Nationstar would suffer damages of $90,000.00 during the time that any sale was not permitted, and as Nationstar’s standing to even seek the remedy of foreclosure is being challenged by the homeowner’s lawsuit.

Jeff Barnes, Esq.,