September 16, 2011

We had a vigorous response within hours of yesterday’s post as to this seminar. The chosen date is Friday, November 11, 2011. Again, the seminar is limited to attorneys and paralegals only, and is also limited to fifteen (15) registrants.

The topic areas will be somewhat similar to those in the prior seminars, but certain new areas will be added including opposing Proofs of Claim and Stay Relief Motions in Bankruptcy; particular issues as to Pooling and Servicing Agreements including discovery and dispositive motions related to compliance with the PSA; handling objections to and compelling discovery of securitization and trust documents; and damage and unjust enrichment claims against foreclosing parties.

The Registration Form is available by e-mail request to [email protected].

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 15, 2011

FDN will be moving its California branch offices to the greater Los Angeles area by year-end, at which time the Newport Beach office will be closed with Mr. Barnes and his staff relocating to Los Angeles. The move is in connection with recent associations with Los Angeles area law Firms, and the need for access to multiple airports in connection with Mr. Barnes’ work in the Western states.

FDN will thus be conducting its final foreclosure defense seminar in its Newport Beach offices in the month of November, 2011. The seminar, like all others before it, will be confined and limited to attorneys and paralegals only. Interested attorneys and paralegals should e-mail Mr. Barnes at [email protected] with available dates in November, as the seminar will be scheduled on a date which is the most available to all who express an interest in attending.

The seminar will feature a “fall harvest” menu for breakfast and lunch, and will be scheduled on a Friday.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com 

September 14, 2011

A Florida Judge has ordered Deutsche Bank, the claimed “trustee” of a securitized mortgage loan trust, to produce numerous securitization documents (including the PSA, Master Purchasing Agreements, Issuer Agreements, Commitment to Guarantee Agreements, Release of Document Agreements, Trustee Agreements, etc.); documents concerning insurance on the securitized mortgage loan; credit default swap documents; servicing agreements; documents as to proof of charges listed on the HUD-1; documents as to the identification of the holder of or investor in any Special Investment Vehicle, Collateralized Mortgage Obligation, Collateralized Debt Obligation, mortgage-backed security, or credit default swap which is collateralized in whole or in part by the mortgage or note; and documents which identify all persons who authorized the filing of the foreclosure action. The ruling was in response to a Motion for Ruling on Discovery Objections and to Compel Documents in a Request for Production. The Motion and discovery were filed by Jeff Barnes, Esq., who represents the homeowner.

Deutsche Bank’s counsel waited ten (10) months before filing a “Response” to the Request for Production, which consisted almost entirely of objections. The Judge also compelled Deutsche Bank’s counsel to file and serve a Privilege Log as to all documents which DB claimed to be “privileged” in any respect.

The ruling represents another milestone for homeowners seeking discovery of securitization documents. For years, we saw the “banks”, servicers, and “trustees” of securitized mortgage loan trusts objecting to these documents on the grounds of “relevance” and “lack of standing”. As those of you who follow this website are aware, recent rulings have not only compelled this discovery and awarded attorneys’ fees and/or dismissed judicial foreclosures when the discovery is not produced, but the “relevance” has been seen by the Horace and Hendricks decisions which granted summary judgment to the homeowners based on matters in the very discovery which has been ordered to be produced in this case. The Horace court also held that the homeowner is a third-party beneficiary of the PSA.

This is the 13th such Order compelling securitization discovery which Mr. Barnes has obtained from courts in different states, including Florida, New Jersey, and Oregon.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com  

September 9, 2011

We are pleased to announce the addition of our second affiliate law Firm in Los Angeles, California. ProsperLaw, located at 6100 Center Drive, Suite 1050, Los Angeles, California 90045 and its attorneys including Senior Partner Gordon Dickson, Esq. and their affiliates will be representing homeowners throughout the State of California.

ProsperLaw becomes the 39th law Firm to have joined the FDN network since it was first established in early 2008.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 2, 2011

          (updated post from this morning, as we have literally received a blizzard of telephone calls since this post was first put up today)

Thirty-two Plaintiffs have filed a multi-count Complaint in the Circuit Court for Palm Beach County, Florida against JPMorgan Chase Bank and Chase Home Finance, LLC. The Plaintiffs retained Jeff Barnes, Esq., whose Firm, W. J. Barnes, P.A., filed the action last Friday.

The 29-page Complaint alleges several causes of action including violations of the Florida RICO Act, and requests temporary and permanent injunctive relief on a national level to halt all Chase-related foreclosure activity in the eight (8) separate states in which the Plaintiffs reside. The Complaint alleges a pattern of criminal activity on the part of JPMorgan Chase Bank and Chase Home Finance in connection with the institution of both judicial and non-judicial foreclosures, including but not limited to the filing and recording, in the public records, of forged and fraudulent documents; fraudulent collection activities; intentional misuse of the MERS system; and the intentional misrepresentation, in foreclosures across the United States, that Chase is the “successor in interest” to Washington Mutual Bank when in fact Chase itself has affirmatively represented, in multiple Federal court filings in different states, that it is NOT the successor in interest to WaMu, and only purchased certain defined assets and liabilities from the FDIC as Receiver for WaMu.

Since this article was originally posted this morning, we have had almost non-stop telephone calls from other victims of JPM and CHF who have told us the same thing over and over: that in their foreclosure, the same “Chase is the successor to WaMu” representation was made, which was done in an apparent attempt to foist a cloak of legal standing on the Chase entity which instituted the foreclosure. It thus appears, even at this early juncture, that the scope of the illegal and fraudulent conduct set forth in the Complaint is even more widespread than we could have imagined.

The Asset Purchase Agreement between the FIDC and Chase is over 70 pages long, yet the purchase by Chase of the certain assets from the FDIC as Recceiver for WaMu coincidentially took place on exactly the same day that WaMu failed and was taken over by the FDIC.

The Complaint details the common wrongful actions of JPM and CHF utilized in both judicial and non-judicial foreclosures instituted across the United States, characterizing the conduct as a “nationalized fraud”.

The Plaintiffs have also filed a Request for Production of Documents which is being served on JPM and CHF which requests the production of fifty-four (54) separate categories of documents relating to the Plaintiffs’ mortgage loans. This same discovery has previously been compelled, by Court Order, to be produced by foreclosing parties in numerous other cases throughout the United States where Mr. Barnes and his local counsel have propounded this discovery in connection with individual foreclosure challenges.

The Complaint is not a class action and is not a “mass joinder” case. It is a multi-Plaintiff action, which is not subject to the rigors of class actions such as certification of the class, and was never, at any time, advertised or intended to be a “mass joinder” case such as those the subject of the recent “K2” debacle. The case is also not related or affiliated, in any way, to any other litigation instituted against the Chase entities by any other group or which may be posted on any other websites, which other websites are apparently attempting to link other Chase-related lawsuits with the Florida action the subject of this article.

The action is the second RICO-based Complaint filed by Mr. Barnes’ Firm in recent weeks. The Firm previously filed an action in Arizona against M&I Marshall & Isley Bank which is grounded in part on violations of the Arizona RICO statute. That action is pending in Tuscon.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 1, 2011

Jeff Barnes, Esq. has been admitted pro hac vice to the Superior Court in and for Sussex County, Delaware in connection with a foreclosure action brought by Bank of New York Mellon as alleged trustee for a First Horizon securitized mortgage loan trust. BONY claims to have succeeded to the rights to the mortgage loan through MERS “as nominee” for First Horizon. The MERS and securitization issues are presently unresolved in Delaware as they are in many other states.

In Michigan, the Judge having juridsiction over the Hendricks decision, where Mr. Barnes and his local counsel James Fraser, Esq. prevailed on summary judgment against US Bank for its failure to comply with the PSA in allegedly transferring the homeowners’ loan to the securitized mortgage loan trust, has denied USB’s Motion for Reconsideration of the summary judgment ruling. The details of this decision were previously published on this website. 

The Hendricks decision was based in part on the same legal principles set forth in the Horace decision from Alabama which also granted summary judgment to the homeowner, finding not only that there was a failure to comply with the PSA in connection with the claimed transfer of the mortgage loan to the securitized trust, but also holding that the homeowner was a third party beneficiary of the PSA.

Mr. Barnes is also lead appellate counsel of an appeal pending in the Oregon Court of Appeals on the issue of MERS’ claimed status and authority, which is also unresolved on the appellate level in Oregon although there are Oregon trial, Federal, and Bankruptcy court opinions on the matter which are divergent. It appears that the appeal pending which has been filed by Mr. Barnes and his local Oregon counsel Elizabeth Lemoine, Esq. is the first Oregon appellate case which will hopefully resolve the issues surrounding MERS’ claimed status as a “beneficiary” and the claimed ability of MERS to assign notes and Deeds of Trust, appoint “Successor Trustees”, and otherwise undertake actions to further foreclosures.

Such actions are in direct contradiction to the MERS Terms and Conditions published by MERS itself (which have been produced in discovery in cases in Oregon where Mr. Barnes and Mrs. Lemoine represent the homeowners), which Terms and Conditions expressly preclude the use of the MERS system to either create or transfer beneficial interests in mortgage loans. MERS’ actions in attempting to assume a transferable interest in a note which it did not own or originate and transfer beneficial interests in Deeds of Trust are also directly contradictory to the restrictions on MERS’ authority arising out of representations of MERS’ own counsel set forth in the MERS v. Nebraska Dept. of Banking and Finance case from the Supreme Court of Nebraska.

The Oregon Trial Lawyers Association has filed an amicus Brief in support of the position taken by the homeowners represented by Mr. Barnes and Mrs. Lemoine. 

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 31, 2011

As those of you who have followed this website are aware, the Law Offices of David J. Stern, P.A., which was filing more than 7,000 foreclosure cases in Florida each month before it came under investigation by the Florida Attorney General, thereafter cut over 90% of its work force as its clients fired the Firm. It was just recently announced that the Stern Firm has now closed its operation in its entirety.

This has caused over 100,000 (yes, that’s over ONE HUNDRED THOUSAND) Florida foreclosure cases to be placed in “limbo” while the cases are (a) reassigned to division Judges after the “rocket docket” system ceased on June 30, 2011 due to lack of State budgetary funding, and/or (b) are being refiled after having been dismissed without prejudice in case management conferences where no one from the Stern Firm representing the Plaintiff appeared for the conference.

Just this week, we have seen a slew of former Stern cases being refiled which had been dismissed without prejudice, this time by several law Firms which have apparently been retained by the former Stern clients, including Bank of New York Mellon as Trustee for securitized mortgage loan trusts, Aurora, and other familiar plaintiffs. In view of the number of cases left hanging as a result of the Stern debacle, we thus expect Florida foreclosures to seriously ramp up in the coming months, as the “banks” and servicers rush to get these foreclosures “on the books” before year-end.

Fortunately, homeowners will now have the benefit of their cases being treated like every other civil litigation case and without being subjected to the horrific “rocket docket” process. This means that homeowners will not be subjected to short-notice summary judgment hearings and repeated, monthly “docket soundings” or 10-minute trial calendars as we saw when the “rocket docket” system was in place, and will have the benefit of full discovery and the opportunity to defend their cases like every other civil litigant.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 30, 2011

At least two states have apparently realized that the nonjudicial foreclosure process is so infected with fraud, illegal documents, and abuse that they are now leaning toward eliminating nonjudicial foreclosures altogether.

In Hawai’i, Act 48 has all but halted nonjudicial foreclosures, which have come under serious challenges involving lack of standing, lack of chain of title, lack of the real party in interest foreclosing, and irregularities in nonjudicial foreclosure documents. Although the Act does not affect nonjudicial foreclosures which were initiated prior to the Act’s effective date, all foreclosures after that date must be brought judicially.

Hawai’i previously permitted a foreclosing party to elect to proceed in either a judicial or nonjudicial manner. With that choice having been eliminated, homeowners may now get a fair opportunity to challenge a foreclosure in court without being put to the tremendous expense and risk of having to file an action to first seek a Temporary Restraining Order and thereafter a Temporary Injunction or be forced to post a crippling bond just to defend their rights and stop their home from being taken by a party which may not have the legal right to do so in the first place.

In Oregon, a press release today revealed that “hundreds of [nonjudicial foreclosure] files are being reviewed”, and that “thousands” of these foreclosures could ultimately wind up before a Judge. This is the result of various Judges blocking nonjudicial foreclosures, ruling that the foreclosing parties had failed to follow legal requirements for instituting a nonjudicial foreclosure.

This is the right path. The entire nonjudicial foreclosure process reeks of denial of due process and operates on a “guilty until proven innocent” mantra: that once the homeowner is claimed to be “in default” that the foreclosing party gets to take the house without having to prove that (a) the claimed debt is valid and (b) that the foreclosing party has the legal right to foreclose, and may do so unless the homeowner files a lawsuit challenging the alleged default and right to foreclose. Notices are simply filed in the public records (which may and oftentimes are not even complete or accurate), and are allegedly sent to the homeowner by mail without any proof of receipt. The abuses from this practice are more than obvious.

Foreclosure is a drastic remedy. It seeks to take a person’s home. In order to do that, the homeowner must be provided with due process: proof of formal notice (which is by service of process in a judicial foreclosure, which has to be proven in court), and the opportunity to defend without having to post a bond to stop a sale of the home pending the result of the litigation. The foreclosing party must prove, by admissible evidence in court, that they have the legal right to foreclose; there is no “presumption” based on documents being filed in the public records.

Judicial foreclosures also do not have a “bond” requirement to stop a sale of the home pending the termination of the litigation, and rightfully so. The entire “bond” process in nonjudicial foreclosures rewards the foreclosing party, who may not have the legal authority to foreclose, and punishes the homeowner who is forced to put up a monetary bond where the claim is disputed. The foreclosing party should only be entitled to money or property in any form if they prove their case, which is properly done in court with the burden being on the foreclosing party which is seeking the money and the property.   

Bravo to Hawai’i and Oregon. We can only hope that the remaining 22 states which currently have nonjudicial foreclosure will soon follow suit.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 29, 2011

A Maui (Hawai’i Second Circuit) Court has denied a Motion to Dismiss filed by US Bank as Trustee of a securitized mortgage loan trust which Motion sought to dismiss, with prejudice, the homeowner’s Complaint challenging a 2008 nonjudicial foreclosure and subsequent purported conveyance of the property. The Complaint alleges that the foreclosure and purported post-sale conveyance did not comply with Hawaii Revised Statute 667-5, which pertains to nonjudicial foreclosure proceedings. The homeowner is represented by Jeff Barnes, Esq. and local Hawai’i counsel Ronald Grant, Esq. Mr. Barnes was admitted pro hac vice at the hearing and argued for the homeowner.

The mortgage was originated by the now-bankrupt New Century Mortgage Corporation, whose subsidiary Home 123 previously had its license to do business revoked by the State of California and its registered agent’s authority rescinded by the State of Hawai’i as well. MERS generated the “Notice of Mortgagee’s Foreclosure” which identified MERS “solely as nominee” for an unidentified entity and with a mailing address of “c/o HomeEq Servicing Corporation” with a post office box in a suburb of Los Angeles, California.

There were never any documents provided to the homeowner identifying who MERS was allegedly acting on behalf of; no evidence of any authority from the United States Bankruptcy Court having jurisdiction over the New Century bankruptcy proceeding permitting the mortgage loan to be divested as an asset from the estate or to permit MERS to conduct a nonjudicial foreclosure; and no documents providing MERS with any authority to either conduct the sale or convey the property post-sale.

The Complaint alleges that the Notices of Sale failed to comply with the literal terms of Haw.Rev.Stat. sec. 667-5 (which requires any nonjudicial sale scheduled pursuant to the Statute to be by a party with authority by the power to act), and that MERS failed to demonstrate any such power as required by the Statute both as to noticing the sale and also thereafter not only conducting the sale but allegedly conveying the property in late 2008 to USBank “as trustee” for the securitized mortgage loan trust which closed in 2006. The Complaint claims that the sale and subsequent “conveyance” were thus null, void, and of no legal effect.

The Court found that the Defendant (USBank as Trustee) failed to meet its burden for dismissal. Hawai’i has a particularly stringent standard for dismissal of actions: that a complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief. Case law from the Supreme Court of Hawai’i has held that a mortgagee who elects to proceed with a nonjudicial foreclosure under 667-5 must comply with that Statute, and that holding a nonjudicial foreclosure sale where the sale was invalid under 667-5 results in the sale sale being void. As HRS 667-5 has no “statute of limitations”, any prior foreclosure which did not comply with the Statute is potentially void regardless of when it occurred.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 23, 2011

A Tennessee Federal court has issued an Order and Memorandum denying a Motion to Dismiss filed by Bank of America which attacked the borrower’s action, brought under Tennessee’s version of the Uniform Declaratory Judgments Act, challenging B of A’s claimed “ownership” of a mortgage loan. The loan was originated by America’s Wholesale Lender, a claimed “dba” of Countrywide. B of A later claimed to have succeeded to ownership of the loan, but thereafter made inconsistent statements concerning the alleged ownership, although the transfer of the loan was purportedly made from the originating lender to B of A within 120 hours of closing.

The borrower had filed suit in state court. B of A removed the case to Federal court.

B of A claimed that there was no “actual controversy” as Countrywide was a subsidiary of B of A, and that Countrywide was “DBA” America’s Wholesale Lender. The Court found that there was nothing in the papers filed by B of A demonstrating that this was in fact the case; that there was nothing in either the Note or the DOT which even mentioned Countrywide; and the Court could thus not determine whether B of A in fact had any interest in the loan.

Jeff Barnes, Esq. (admitted pro hac vice) and local Tennessee counsel John Higgins, Esq. represent the borrower.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com