April 23, 2015

A District Court Judge in Lancaster County, Nebraska has denied Motions to Dismiss filed by Bank of America which were directed toward the homeowner’s claims against BOA and the alleged substitute trustee for declaratory relief, quiet title, accounting, conversion, and injunctive relief. The homeowner is represented by Jeff Barnes, Esq. and local Nebraska counsel Doug Ruge, Esq. Mr. Barnes prepared the Complaint; Mr. Ruge prepared the Brief in opposition to the Motion to Dismiss.

The Court entered a narrative order which made a very important specific finding and legal distinction. The Order recites that the homeowner is not asserting that the holder of the Note and DOT could not assign them, but rather that she is questioning whether what was done actually accomplished that goal. The case involved an alleged MERS assignment. The Court held that the homeowner is entitled to a determination that the party to whom she pays is the party to who she owes the money, and that the other causes of action spring from the possibility of a finding that the defendants are not the proper parties to proceed with the foreclosure.

This is a very significant ruling. It distinguishes the bank and servicer mantra that borrowers do not have standing to challenge assignments (which, by the way, they do pursuant to the recent Slorp decision from the U.S. Court of Appeals for the 6th Circuit which clarified their prior opinion in Livonia Properties which the 6th Circuit held “confounded courts and litigants” across the country).

The Court’s reasoning provides a sound basis for the assertion of an action for declaratory relief and all of the other causes of action alleged while also clarifying an important legal distinction as to a challenge to an alleged transfer of a Note and DOT.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com