November 20, 2015

In view of overwhelming demand and continuing requests, Mr. Barnes will shortly be releasing his first foreclosure e-book which will be made available to anyone. As those of you who follow this website know, Mr. Barnes has a Masters’ Degree in education and was previously a teacher before becoming an attorney, and has been involved in foreclosure defense cases in over 35 states since essentially confining his law practice to the defense of foreclosures beginning in mid-2008.

The e-book will be a primer which will introduce the reader to a variety of foreclosure issues and cover multiple topics relating to foreclosure, including explaining the procedural and substantive differences between judicial and non-judicial foreclosure; MERS issues; an introduction to how securitization works and issues in securitization cases; discovery; and more. A monthly update service will also be made available which will provide information as to trends in the law, current issues in foreclosure litigation, and new developments on specific foreclosure-related matters.

At this time, the anticipated release date for the e-book is late December, 2015 (in approximately 6 weeks). Further details will be provided shortly, and a separate link will be added to this website related to the e-book and the monthly update subscription service.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

(Mr. Barnes has been “on the road” for the past weeks traveling to hearings in different states)

November 19, 2015

A Pinellas County, Florida Circuit Judge vacated a Final Default Judgment against a homeowner who resides in Israel who never resided in the Florida property upon which Wells Fargo foreclosed upon. The loan file reflected that Wells Fargo knew that the homeowner resided in Israel and actually had his address in Israel, yet directed its process server (per statements on the process server’s Service Affidavit) not to attempt service in Israel. Service was allegedly made by “publication”.

The Final Default Judgment was thus vacated and set aside, as the obvious attempt of Wells Fargo was to avoid compliance with Florida’s service of process statutes and circumvent the required service with “publication”. Jeff Barnes, Esq. represents the homeowner.

In Connecticut, a foreclosure action was dismissed based on a lack of standing and lack of any proof of any proper transfer of the loan to the foreclosing Plaintiff, which was proven by a loan investigation report of the homeowner’s expert witness Richard Kahn. Mr. Kahn was formerly upper management with Merrill Lynch’s mortgage-backed securitization division on Wall Street, and has also assisted Mr. Barnes in securing a victory at trial and successfully opposing summary judgment motions in other cases.

The homeowner was represented by the Scalzi law offices in Connecticut, with substantial assistance from John Krondes who is a paralegal with that Firm who also assists W. J. Barnes, P.A. in that capacity with other cases.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 29, 2015

W. J. Barnes, P.A. is pleased to announce the opening of its new branch office in Denver, Colorado in connection with the Firm’s affiliation with Atlas Law Firm, P.C. of Denver. Mr. Barnes will be working with Edward Levy, Esq. of Atlas per our prior post below.

The Denver office is located in Suite 575 of the Ptarmigan Building, 3773 Cherry Creek North Drive, Denver, Colorado 80209. Meetings in that office will be by appointment only, and may be scheduled with Tiffany Goldwater (of W. J. Barnes, P.A.) by e-mailing [email protected].

W.J. Barnes, P.A. and Atlas Law Firm, P.C. will shortly be publishing a directory of services which will include foreclosure defense, bankruptcy (Chapters 7, 11, and 13), defense of Stay Relief Motions and Proofs of Claim in Bankruptcy proceedings, FED/UD defense, appeals (state and Federal court), and loan enforcement dispute actions. Expert witness services will also be made available through Richard Kahn, who was formerly the national product manager for Merrill Lynch’s mortgage-backed securities division on Wall Street who has over twenty years of experience in securitization and who has been qualified as an expert witness in numerous states across the country.

Recently, Mr. Barnes has been requested by homeowners across several states who are current and not in default on their loans to file pre-emptive actions to determine whether a claimed lender or servicer has the right to seek payment on a mortgage loan which was not originated in the name of the servicer or their principal. Most of these cases involve securitization of the loan or SBM (alleged “successor by merger”) situations (such as the claim of JPM that it is the alleged “successor in interest” to the defunct WaMu or BOA is the alleged “purchaser” of a Countrywide originated loan).

These Loan Enforcement Determination actions are becoming ripe due to recent decisions of appellate courts, particularly in Florida, that mere possession of a Note with an undated blank endorsement does not prove standing (resulting in many reversals of foreclosure judgments and the entry of judgment in favor of the homeowner), and in view of the increasing questionable nature of alleged “original” Notes which were previously claimed to be lost or which did not have an endorsement stamp appear until well into the foreclosure litigation.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 22, 2015

In recent months, we have been advised by homeowners in different states that certain Judges in those states have taken the position that decisions by either the Supreme Court of that state or decisions of the United States Supreme Court are not binding on them. Taking such a position violates the Judge’s duties as an officer of the Court, erodes confidence in the judiciary, and renders the public more suspicious of the court system than it already is.

A Judge is duty-bound to follow the “law of the land” whether they agree with it or not. A Judge cannot impose his or her own personal views as to whether the state or US Supreme Court made the correct decision on an issue: when a state Supreme Court or the US Supreme Court decides a specific legal issue, the law is established and Judges must follow it. State supreme courts (other than as so denominated in New York, as the “Supreme Court” is a lower level court in NY) and the US Supreme Court are the highest appellate courts, and their decisions establish “the law of the land”: a state Supreme Court decision establishes the law for that State, while the US Supreme Court establishes the law for the country.

In our experience, the overwhelming majority of Judges are fair, honest, considerate of the position of both sides, and take the law into account when rendering their decisions. The examples below are isolated, but the fact that two such examples have been recently brought to our attention is disturbing.

One of the cases which we were advised of concerned the use of Mr. Barnes’ successful appeal of the MERS issues in the Supreme Court of Montana, which by its decision established that MERS was not the “beneficiary” of a Deed of Trust despite claiming to be so. Although this decision was issued two years ago, the homeowner advised that when that decision was presented to a local Montana county Judge, the Judge took the position that he was not bound by the Supreme Court of Montana’s decision.

Another homeowner advised us that in a prior foreclosure-related hearing before a state court Judge that the Judge told the homeowner that he was not bound by decisions of the United States Supreme Court.

This contempt and disrespect for state Supreme Courts and the US Supreme Court is beyond disconcerting.  There is no reason why homeowners facing foreclosure should be treated adversely when a decision of a state or the US Supreme Court is in favor of them and presented to the Judge. “And Justice for All” means just that: it does not mean “except no justice for homeowners in foreclosure.”

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 20, 2015

We are pleased to announce the network’s affiliation with mortgage securitization expert Richard Kahn. Mr. Kahn spent years on Wall Street as management with Merrill Lynch in their mortgage securitization division, reporting directly to (former Treasury secretary) Donald Regan. Mr. Kahn has been qualified as an expert in numerous states across the U.S. His company, FPG USA, offers initial loan assessments as well as full-blown mortgage loan reports.Mr. Kahn has been instrumental in assisting W. J. Barnes, P.A. with the defense of foreclosures involving securitizations, SBMs (successors by merger), and cases involving defunct and bankrupt original lenders across the U.S.

The network has also established an affiliation with Denver, Colorado bankruptcy attorney Edward Levy, Esq. Prior to opening his own law practice, Mr. Levy spent over 15 years as a certified public accountant with a national CPA firm, and was also a Chief Financial Officer and corporate controller in private industry. Mr. Levy currently provides bankruptcy services to homeowners facing foreclosure, including filings under both Chapter 7 and Chapter 13 of the Bankruptcy Code.

W.J. Barnes, P.A. and Mr. Levy’s law Firm are currently in the process of reviewing a number of locations for office space which will be shared by both Firms. In view of an increase in Mr. Barnes’ Colorado practice, his plans are to spend several days each month in what will be the Denver office.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 19, 2015

Once again, the Florida Fourth District Court of Appeal has reiterated what is now established law in the State of Florida on “blank endorsements”: no proof of when the stamp was placed on the Note results in reversal of any final judgment in favor of the foreclosing party (and thus no foreclosure), and final judgment in favor of the homeowner. The most recent pronouncement of this maxim is set forth in Peoples v. SAMI II Trust, etc., Florida 4th DCA case No. 4D14-2757 (Fla. 4th DCA, Oct. 14, 2015).

The foreclosing party filed an Amended Complaint with a copy of the Note (in favor of America’s Wholesale Lender) with no endorsement, after which it filed an “original” Note with a stamp. There was no testimony at trial as to when the stamp (allegedly executed by Countrywide) was placed on the Note.  The final judgment which the trial Judge entered in favor of the foreclosing party (a BNY securitization) was reversed with directions to enter final judgment in favor of the homeowner.

Despite the issuance of this case, which is only the latest in a long line of appellate decisions in Florida, the foreclosure firms continue to argue that all they need to prove standing is “the original note with a blank endorsement”, period. Perhaps they are hoping that the Courts are not reading the law, as they apparently are not or they have and are just not being candid with the Court as to what the current state of the law really is.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 13, 2015

Mr. Barnes mourns the recent loss of Robert “Bob” Smart, a longtime client of the Barnes law Firm who was killed in an automobile accident in Colorado last Friday. Bob was a kind and gentle soul and was a friend who will be sorely missed. Be at peace, Bob.

Jeff Barnes, Esq.

We are in the process of a major update to the website, making it mobile friendly and modernizing the theme.  This caused the site to be down for a period of a few days and we apologize for this, however we are over the hump and rounding the corner to completion.

You may see some style changes over the next few days as we complete the work and finish our upgrades.  Thank you for your patience and your dedicated viewership.

September 18, 2015

Yesterday, a case was brought to our attention which was issued in 2004 but which applies to current litigation. A Federal appeals court upheld awards of compensatory damages, attorneys’ fees, and a $6 million dollar punitive damage award against EMC Mortgage Corporation arising out of its actions in breaking into the homeowners’ residence without their consent and posting a sign in the window that the property was “secured” and not for sale or rent. This conduct occurred during foreclosure litigation, and at the time, EMC did not have any title to the property or judgment or any other rights of possession.

EMC also, with knowledge that the homeowners were represented by counsel, repeatedly directly contacted the homeowners, who then moved to amend their complaint to include claims alleging intentional wrongful actions against EMC and seeking punitive damages for violations of the Fair Debt Collection Practices Act (FDCPA).

Even though the homeowners were living in an apartment when the wrongful conduct occurred, the arbitrator found that EMC’s conduct was “reprehensible and outrageous and in total disregard” of the homeowners’ legal rights, and awarded $6 million in punitive damages against EMC for violations of the FDCPA, 15 USC sec. 1692. The United States Court of Appeals for the 8th Circuit affirmed all awards. Stark v. Sandberg and EMC et al., 381 F.3d 793 (8th Cir. 2004).

Mr. Barnes has applied this holding to a current case in North Florida where the foreclosing party not only broke into the homeowner’s property and changed the locks, but also stole certain items and destroyed others. A Motion to amend the Answer to add additional affirmative defenses and a Counterclaim for damages including punitive damages has been filed today.

We have been advised by homeowners that “banks” and servicers have wrongfully entered property (which is in the midst of foreclosure litigation or a challenge to the foreclosure) under the guise of “securing” it when the “bank” or servicer has no rights of possession to the property. The Stark opinion provides that significant damage claims can be asserted against those “banks” and servicers for this type of conduct.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 16, 2015

Two homeowners have filed a Federal Civil Rights action against three officers of a Colorado Sheriff’s Office, the Federal National Mortgage Association, and attorney Lawrence Castle for damages arising out of a horrific eviction where the Sheriff’s office utilized over a dozen children to essentially rape the homeowners’ home and destroy their possessions and furniture. Attorney Lawrence Castle instituted the eviction. As those of you who follow news in the foreclosure arena know, Castle closed his foreclosure mill after being sued by not only his clients by the Colorado Attorney General for committing a massive multi-million dollar fraud upon his Firm’s clients (see Denver Post, July 15, 2014 “AG sues Colorado’s largest foreclosure law firms alleging massive fraud”).

The action also alleges that a representative of FNMA assisted in the effort to not only permit the destruction, but also to interfere with the work of the professional movers who were hired by the homeowners. The movers were and had been in the process of removing possessions from the home when the Sheriff’s office defendants on the scene directed the movers to cease their work and instructed the swarm of children to go into the home with black plastic garbage bags and throw all of the homeowners’ possessions into the bags.

The professional movers requested the on-scene law enforcement defendants to permit them to remove the heavy furniture and appliances. The law enforcement defendants refused to do so, and instructed the children to remove the furniture and appliances, which they destroyed in the process. The homeowners were told the following day that the children were routinely used for evictions and were paid with a bag of cash.

Jeff Barnes, Esq. represents the homeowners. A copy of the Verified Amended Complaint is available upon e-mail request.

The Verified Amended Complaint was finalized the day before Mr. Barnes was advised of a press release relating to the feature film 99 Homes, which opens in theaters on September 25. The film details the horrors of the eviction process, and the director credits Lynn Szymoniak as a “major force in my research” in addition to the fact that the massive fraudulent paperwork perpetrated the banks in foreclosures “is still happening now.”

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com