January 28, 2016

FDN network counsel John Higgins, Esq., assisted by Jeff Barnes, Esq., have stopped post-foreclosure proceedings in Tennessee with the filing of a separate Federal action seeking rescission under the United States Supreme Court’s Jesinoski decision, which held that a rescission is effective upon mailing. The foreclosing party failed to undertake any action to seek to challenge the homeowners’ statutory right to elect rescission within the timeframe provided by the TILA statutory scheme (and in fact made no challenge at all).

The foreclosing party is Bank of NY as the claimed “trustee” of a Countrywide securitization. The home had been sold to third parties, who were named as co-Defendants in the homeowners’ rescission action which also seeks Declaratory Relief, as such an action requires joinder of any party who may have an interest in the outcome of the action or whose interests may be affected by any Final Judgment entered in the action.

Mr. Barnes prepared the rescission Complaint, which was filed by Mr. Higgins, who also sought a stay of the state court foreclosure proceedings. Despite vicious anger and screaming by counsel for BNY and the third parties and their insistence on an unreasonable bond, the Tennessee state court Judge found that a stay was appropriate without the imposition of a significant bond.

Mr. Barnes presently has several Jesinoski/rescission cases pending across the US, including cases filed in Colorado, Florida, Georgia, and now Tennessee (with Mr. Higgins). Additional actions are being prepared for filing in Wyoming and a second case in Colorado. As this website has published, Mr. Barnes was successful in staving off an eviction in Colorado as a result of the assertion of a rescission defense, which is now the subject of a pending Federal action in Colorado.

Courts in Hawaii and Oregon have recognized the principles of Jesinoski over objection of “bank” attorneys. “Bank” and servicer attorneys continue to refuse to acknowledge the mandatory effects of a statutorily-authorized right of rescission despite the Supreme Court’s Jesinoski decision. Further, the issue of what constitutes “consummation” of a loan remains unresolved, and is a question of state law and does not ipso facto mean the date the loan papers were signed especially where the loan was “table funded” and the true lender was not disclosed. It is only recently that homeowners are starting to discover that their alleged “lender” was not a lender at all, and was in fact borrowing off of commercial warehouse lines and converting the alleged “residential” mortgage loan into a commercial investment transaction without any disclosure to the borrower.

As one expert witness has termed it, the process was “cows in, hamburger out”, meaning that it is impossible to determine who the true “lender” was.

As those of you who follow news in the area of foreclosure law know, there was a recent jury verdict in Texas entered against Wells Fargo for $5.4 million in favor of the homeowners based on findings of fraud and misrepresentation by Wells Fargo and Carrington Mortgage Servicing. The Texas attorneys for the homeowners obtained this verdict through an expert witness who has over 25 years of experience in the mortgage industry and who serves as an expert witness across the United States.

Mr. Barnes’ Firm has teamed up with the homeowners’ expert witness in the Texas case, whose testimony was instrumental in the resulting multi-million dollar jury verdict. The fraud which was engaged in by the “banksters” and perpetrated upon tens of millions of homeowners that is now coming to light through the work of this expert and others is beyond comprehension, and will be exposed in lawsuits which have been filed and which will be filed.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com