November 28, 2012

It is no secret, for those of you who follow this website, that pursuant to the sworn deposition testimony of Lawrence Nardi, who was previously employed by Washington Mutual and thereafter by JP Morgan Chase, which sworn deposition testimony is under oath and subject to the penalties of perjury, that there was NEVER a mortgage loan schedule as to any mortgage loans “purchased” by JPM from the FDIC pursuant to the Purchase and Asset Agreement (PAA) between the FDIC and JPM dated September 25, 2008, which was the day that WaMu failed. A full copy of the Nardi deposition transcript will be e-mailed to anyone who requests it from us.

It is also no secret that JPM admitted, in its Motion for Summary Judgment in the case which Deutsche Bank filed against it and the FDIC in the U.S. District Court for the District of Columbia, that JPM is NOT the successor in interest to WaMu. This affirmative representation by JPM in its filing to the U.S. District Court, which expressly stated that only CERTAIN assets and liabilities were assumed by JPM from the FDIC, constitutes a judicial admission against JPM. Despite this, JPM continues to go around the country claiming, in court filings and other written documents, to be the “successor in interest” to WaMu in its effort to foreclose. This is the same type of lie which MERS perpetrated when it told the Supreme Court of Nebraska that it has no interest in mortgage loans and does not collect money, etc., yet states in filings in the other 49 states that it is the “mortgagee” (in a mortgage) or “beneficiary” (in a Deed of Trust) and is entitled to foreclose.

JPM is thus either lying to the United States Federal Court, or is lying to all other courts in the U.S. Our opinion, in view of the Nardi deposition and the filing/judicial admission in the DB case, is that JPM is lying to numerous courts around the country as to being the “successor in interest” to WaMu and claiming it has the right to foreclose. This is one of the largest judicial frauds ever committed, which is being done on a national scale.

The foreclosure mills, including the Shapiro Fishman & Gache Firm in Florida and the Phelan Hallinan & Schmieg Firm (a foreclosure mill based in New Jersey with a branch office in Florida) have reacted to these undisputed facts with recent court filings seeking to strike homeowner defenses to foreclosure with motions seeking to strike the homeowners’ defenses and for sanctions. Perhaps these foreclosure mills think that the Courts will not be made aware of the sworn admissions of Mr. Nardi (made under the penalty of perjury) and the judicial admissions of JPM in the DB Federal litigation. Anyone facing these types of challenges needs to file the Nardi deposition and request that the Court take judicial notice of the admissions of JPM in the DB Federal litigation. If it is found that the foreclosure mill asserted a frivolous motion, the homeowner should seek sanctions against JPM and the foreclosure mill as available under applicable law, including but not limited to attorneys’ fees.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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November 27, 2012

FDN’s Jeff Barnes, Esq. has been retained as lead appellate counsel in appeals pending in six different states on leading issues in foreclosure defense. The appeals are in state, Federal, and Bankruptcy Courts.

In Hawaii, Mr. Barnes has been retained to appeal the grant of a summary judgment where there are multiple issues of fact relating to the standing of a non-lender to institute a non-judicial foreclosure, where the corporate representative of the non-lender denied, under oath, any personal knowledge of numerous issues relating to the alleged transfer of the mortgage and Note.

In Colorado, Mr. Barnes has been retained to prosecute an appeal in the 10th Circuit Bankruptcy Appeallate Panel on securitization issues as they relate to the grant of relief from the automatic stay to pursue foreclosure.

In Oregon, Mr. Barnes has been retained to defend his earlier victory in the Oregon Court of Appeals on the issue of whether MERS is a “beneficiary” under the Oregon Trust Deed Act. MERS has appealed that decision. Mr. Barnes is also appealing an adverse verdict at trial in another case where the homeowner’s securitization defenses were excluded by the trial court.

In Tennessee, Mr. Barnes is appealing, to the United States Court of Appeals for the 6th Circuit, the grant of summary judgment in a securitization case where the homeowner requested a declaration that the securitized trustee did not own the mortgage loan. Mr. Barnes was admitted to the 6th Circuit today. A second appeal is being taken to the Tennessee Supreme Court from an affirmance, by the Court of Appeals, of an adverse decision by the trial court where the trial court did not permit the homeowner to raise defenses to a summary judgment motion which was back-noticed without notice to the homeowner’s counsel.

In Montana, Mr. Barnes will be taking an appeal of the MERS issues to the Supreme Court of Montana, similar to the Oregon appeal, as Montana has no appellate law on what MERS can and cannot do.

In Florida, Mr. Barnes is prosecuting three separate appeals in three different appellate districts. All relate to the grant of summary judgment in favor of the non-lender foreclosing party.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

November 21, 2012

In a very well-reasoned opinion, a Michigan Federal Court has granted a homeowner’s Motion for Leave to Amend his Complaint to challenge a non-judicial foreclosure on the grounds that the alleged assignment of the loan by MERS as “nominee” from the bankrupt original lender to US Bank as “trustee” of a securitized mortgage loan trust violated the provisions of the PSA governing transfers of mortgage loans into the trust, thus enabling the homeowner to seek relief under Michigan Comp. Laws sec. 600.3204(1)(d) as US Bank was not the “owner of the indebtedness” at the time it submitted its credit bid at the sale. This opinion follows prior Michigan Federal opinions which permit an attack on an assignment in general, but goes much further as it expressly permits such an attack through a claimed violation of the PSA.

The homeowner claimed that because the original lender filed and was approved for a Chapter 11 bankruptcy on January 16, 2008 that it was doubtful that MERS, as the claimed “nominee” for the bankrupt original lender, could have assigned the loan to US Bank on June 30, 2011. The homeowner also claimed that the assignment of the note was improper as it violated the PSA by not including all intervening endorsements showing a complete chain of title from the original lender to the Sponsor, then to the Depositor, and then physically received by the Custodian of the Trust.

The Court held that the homeowner may seek relief under section 600.3204(d)(1) “if it is true that the PSA governs the assignments of the Property’s mortgage and note and those assignments violated the PSA’s provisions.” The case is Christopher v. Ownit Mortgage Solutions et al, U.S. District Court for the Eastern District of Michigan (Southern Division) Case No. 12-11872, opinion filed October 31, 2012. We thank one of our dedicated followers for bringing this opinion to us yesterday afternoon.

This ruling is in line with the Hendricks v. US Bank case where Jeff Barnes, Esq. obtained summary judgment in favor of the homeowner in the Washtenaw County, Michigan state court where the court found that the alleged transfers to the US Bank securitized mortgage loan trust did not comply with the mortgage loan conveyance provisions of the PSA.

The Christopher opinion reflects the rational and common-sense approach to challenges to assignments which do not comport with the PSA: if the securitized mortgage loan trust is claiming to have come into possession of and the ability to enforce a mortgage, and it agreed, by contract, that mortgage loans conveyed into the trust must be so conveyed by specific procedures, then the foreclosing securitized trustee must prove that it complied with the very documents by which it agreed to be bound in order to establish that it owns the alleged indebtedness.

Bravo to the Hon. Robert H. Cleland, the United States District Judge who authored the opinion.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

November 14, 2012

In what is the first case of its kind that we have seen, Wells Fargo, as a securitization trustee for an Option One mortgage loan trust, has filed a Verified Amended Complaint (VAC) in a Florida foreclosure case where it expressly refers to and relies on the PSA, even quoting portions of the Section 2.01 Mortgage Loan Conveyance Provisions and the directions of the PSA as to the express manner of endorsement of the Note.

What makes this case even more interesting is that WF admits, essentially under oath, that the (alleged) endorsment to the Note “does not reflect the language proposed by the PSA”, but that the transfer is purportedly manifested by a redacted portion of the mortgage loan schedule (which shows no such transfer or confirmation of compliance with Section 2.01), and an undated “Allonge” which was “executed” by Option One. It is public knowledge that Option One ceased its mortgage operations in 2008.

With this verified pleading, WF obviously will not be able to object to any securitization-related defenses or discovery, as it has expressly plead the PSA in the VAC, and thus defenses and discovery as to matters plead are deemed relevant to the facts allegedly supporting the claims of the Plaintiff itself.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

November 9, 2012

FDN attorneys have obtained positive results in foreclosures cases in three different states this week.

Today in Lee County, Florida, a Circuit Judge denied Deutsche Bank’s Motion for Summary Judgment. The Court Order provides that there are genuine issues of material fact and discovery remains an issue. Jeff Barnes, Esq., who had a previously summary judgment in the case vacated, represents the homeowner and argued the matter earlier today. The case involves not only a signature on an alleged “original” promissory note which signature does not match that of the homeowner on either her driver’s license or her Affidavit (and which “original note” was mysteriously “found” just before a prior summary judgment hearing and when the Complaint contained a count for “Lost Note”), and outstanding discovery compelled by a prior Order of the Court which also assessed attorneys’ fees against Deutsche Bank. There are also issues as to the validity of the alleged “endorsement”.

In Tennessee, a Judge has entered an Order staying any sale of the homeowner’s property pending the full disposition of the litigation without the requirement of a bond, and has commanded that all discovery (which the “bank”, that being Bank of New York Mellon as the securitization trustee, had opposed) be overseen by a Special Master. The “bank” had previously filed a Motion to Dismiss and Motion to Stay Discovery. The Court reserved ruling on the Motion to Dismiss pending discovery. Notwithstanding that no discovery was produced, the “bank” renewed its Motion to Dismiss, which was denied again. The homeowner is represented by Jeff Barnes, Esq. and local Tennessee counsel Andrew Farmer, Esq.

The third was the Colorado ruling in the post below. We have had over a dozen requests for copies of this decision from attorneys in several states.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

November 5, 2012

In a 3-page written opinion, a Colorado District Court Judge has denied the application of JPMorgan Chase for an order authorizing the nonjudicial sale of a homeowner’s primary residence. The ruling comes after a full evidentiary hearing requested for and argued by Jeff Barnes, Esq., who represents the homeowner.

JPM alleged that it had succeeded to the rights of the Note and Deed of Trust through two “Allonges”, neither of which was physically attached to the Note. The Allonge which was allegedly signed by the original lender did not contain any language as to “affixation” to the Note, and no evidence was presented as to the authenticity or authority of the signatures on this Allonge. The Court’s opinion cited the case law which Mr. Barnes presented to the Court at the hearing, which set forth the standard for “affixation” of an allonge to a Note.

The Court found that JPM did not meet the standard, and also found that there was no competent evidence as to authenticity or authority of the signatures on the Allonges, noting significantly that “the statutory presumption about the authenticity for signatures does not apply”. JPM’s counsel had argued at the hearing that the Allonges were “self-authenticating” under Colorado law; Mr. Barnes argued that the statutory presumption did not apply to the Allonges, which themselves are not negotiable instruments or self-authenticating documents.

The ruling is significant as it sets forth the requirement that there be competent evidence as to the authenticity and authority of the signatures on an allonge (which JPM’s counsel alternatively referred to in the hearing as an “endorsement”). This ruling is in line with recent case law from Florida and North Carolina which require evidence of authority and authenticity on claimed endorsements, rejecting the notion that an undated and unauthenticated “blank endorsement” suffices for admissibility purposes and purposes of showing that a foreclosing party has standing.

The ruling is also significant as it held that when a homeowner challenges the authority of a party to foreclose in a Rule 120 proceeding that the court must consider that defense in the Rule 120 hearing, citing the Goodwin decision from the Supreme Court of Colorado which Mr. Barnes cited in his formal opposition to JPM’s Rule 120 Motion. JPM’s counsel argued that the only issues in a Rule 120 are military status and probability of default, and that the homeowner lacked standing to raise other issues. The Court, citing Goodwin, held otherwise.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 29, 2012

FDN is now into its 5th year of representing homeowners across the United States challenging foreclosures by non-lenders, servicers, securitized trustees, and alleged “successors in interest”. Through these years, the litigation nationally has gone through several phases, now evolving into what some would call “foreclosure offense” including suits for billions of dollars in damages against not only the banks but also at least one state Attorney General. As most of you know, there is a $43 trillion lawsuit which has been recently filed against the banks as well.

In the early years (2008-09), the response to a foreclosure was “OMG, what do I do now?” People had never heard of things like MERS, securitization, robo-signing, and the other infections in later foreclosures, and simply either filed bankruptcy, let a judgment be entered or a sale proceed, or attempt to give the property “back” to the foreclosing party (which never financed the transaction in the first place) through, for example, a Deed in Lieu of foreclosure. The second phase, which began in late 2008 and early 2009, was the “TILA recission” cry which, unfortunately, was not understood by most of those who attempted to advance it, and which lead to numerous claims being dismissed on Statutes of Limitations and failure of proof grounds.

The third phase came into being in 2010 where certain attorneys and homeowners really began to zero in on the MERS issues, robo-signing, fraudulent affidavits and assignments, non-existant notaries, and other infirmities in the process, leading to affirmative attacks on standing, real party in interest, and chain of title issues. Many of these cases have been discussed over the years on this website.

We have now progressed to the 4th phase: affirmative claims against the banks, servicers, etc. for money damage claims resulting from fraudulent foreclosure activity. The Levin Senate Report and other sources which have detailed the abject fraudulent conduct by the banks has provided an impetus for moving forward against the banks instead of attempting to only defend the foreclosure effort. We have formed a relationship with an expert in securitization, banking, and finance who has been involved in these areas for over 25 years and who actually wrote credit default swaps. This expert is assisting us in preparing new litigation which exposes numerous intentional acts of misconduct by the banks for the purpose of not only creating a false obligation, but also for purposes of stripping all equity from a homeowner and blocking the homeowner’s ability to refinance. There is a lot to this which will be developing over the coming months. Stay tuned.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 17, 2012

We are getting more and more inquiries regarding situations where a home has suffered damages from a natural disaster (such as a flood, fire, etc.) and the insurer issues a check for repairs which is made out to the homeowner and the alleged “lien holder” (the foreclosing party), who then refuses to sign off on the check so that the homeowner can make the repairs. The “bank” claims that they can lawfully withhold the insurance proceeds to apply them towards the alleged debt on the mortgage loan, thereby not permitting the homeowner to make the necessary repairs and placing the homeowner in an even more precarious position. We have been presented with this situation in cases in Tennessee, South Carolina, and Florida to date.

The situation has become so bad that we have had the insurer in one case file an interpleader action where the insurance proceeds are placed into escrow while the rights to the money are litigated. In fact, the insurer told us that they have had to resort to this procedure quite a bit lately due to the lack of cooperation from the “banks” in permitting the homeowner to take the insurance proceeds to pay for the necessary repairs.

This conduct by the “banks” is abhorrent, and we are aware of no decision (case law) which permits a foreclosing party in a contested foreclosure to keep insurance proceeds specifically paid for repairs and to apply same to the disputed debt. Thus, as we have had to do in so many other situations where there is no precedent, we will have to force this issue before the courts.

Separately, Mr. Barnes has recently been retained to prosecute an appeal of a denial of reconsideration of a grant of stay relief in a securitization case to the U.S. 10th Circuit Bankruptcy Appellate Panel; an appeal of a summary judgment in Hawaii; and has also been retained to appeal a summary judgment to the Federal 6th Circuit arising out of a case in Tennessee in another securitization case.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 13, 2012

For what is now going into its fifth year, FDN, through its national network of attorneys which now numbers 44 law Firms, has consistently forced significant issues in foreclosure to be brought before trial and appellate courts around the country. Three of these are coming to a head at this time.

As those of you who follow this website are aware, on July 18, 2012, the Oregon Court of Appeals issued its decision in Niday v. GMAC and MERS which held, in a 27 page opinion, that MERS is not the “beneficiary” in a Deed of Trust notwithstanding language in the DOT to that effect. Jeff Barnes, Esq. and local Oregon counsel Elizabeth Lemoine, Esq. represent the Nidays, who prevailed in that decision. MERS has taken an appeal of that decision to the Oregon Supreme Court, which has granted review. The case will be orally argued before the Oregon Supreme Court in early January, 2013.

One month after the Niday decision was issued, on August 16, 2012, the Supreme Court of Washington issued its opinion in Bain v. Metropolitan Mortgage and MERS which not only came to the same result as the Oregon Court of Appeals did in Niday, but went even further to provide that MERS can be sued for misrepresenting its claimed status as a “beneficiary”.

In New Jersey, FDN attorneys Jeff Barnes, Esq. and local NJ counsel Daniel Schmutter, Esq. represent the homeowner in a case where there is a pending Motion to Dismiss a foreclosure with prejudice for US Bank’s refusal to produce discovery and witnesses with personal knowledge of numerous issues despite no less than five (5) court orders compelling this discovery, including one Order which was entered AFTER the case was dismissed without prejudice, as New Jersey permits a noncomplying party 60 days to remedy the discovery deficiency in connection with any request to reinstate the case. There is currently no New Jersey decisional (case) law which is “on point”, and thus if the case is dismissed with prejudice, it will be the first such case to be so dismissed on these facts in the history of the state of New Jersey. The Motion will be argued in the near future.

In Florida, Mr. Barnes represents the homeowners in an appeal of a summary judgment which was granted despite the trial court not being provided with any evidence as to when the alleged endorsement was placed on the Note. Recent Florida case law has repeatedly reversed summary judgments where there is no evidence that the endorsement was placed on the Note prior to the time that the Complaint was filed (Florida has a requirement that standing be demonstrated at the time the complaint is filed, which cannot be “cured” thereafter by a subsequent endorsement). The trial Judge actually asked the “bank’s” counsel, at the summary judgment hearing, when the endorsement was placed on the Note, which question was not answered. There are also issues with the validity of the “Affidavit” filed in support of the MSJ.

Discovery battles for securitization discovery continue in Hawaii, Tennessee, and New Mexico where Mr. Barnes represents the homeowner with local counsel in each of those states. These states should follow the example of New Jersey, where Mr. Barnes and his local in-state counsel have had no less than nine (9) cases dismissed as a result of the foreclosing party’s failure to produce discovery.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

October 3, 2012

FDN now has access to Bloomberg for use in its securitization audits. You may contact us via the “Contact Us” link for more information. We are also in the process of establishing local network counsel in Georgia, which will result in the 44th law Firm to be added to the network.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com