May 18, 2011

Registration for this seminar closed this past Monday, May 16, 2011. The handbooks for those who timely registered and paid are prepared, and the facility has been provided with the number of attendees for meal and seating purposes.

This is to advise again that THERE WILL BE NO WALK-INS PERMITTED AND NO ON-SITE REGISTRATION PERMITTED as the handbooks had to be prepared in advance and the facility required 5 days’ notice for meals and seating. There will also be no “auditing” or observation of the course permitted, as attendance is strictly limited to those attorneys and paralegals who timely registered and paid.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

May 17, 2011

For the past few years, we have been advancing to the Courts that a “trustee” bank which fails to comply with the Mortgage Loan Conveyance provisions of a Pooling & Servicing Agreement (PSA) of a securitized mortgage loan trust cannot, either directly or through a servicer, foreclose as the mortgage loan was not legally transferred to the trust. As the courts have found that the issue of whether or not the transfer is proper or legal implicates discoverable issues, we have repeatedly obtained Orders compelling discovery on these issues.

On March 21, 2011, the Circuit Court of Russel County, Alabama in the matter of Phyllis Horace v. LaSalle Bank National Association as trustee for Certificateholders of Bear Stearns Asset Backed Securities I LLC Asset Backed Certificates Series 2006-EC2, MERS, Encore Credit Corporation, EMC Mortgage Company, and Bank of America as successor in interest to LaSalle Bank National Association, Case No. CV-2008-362, hit the point home in granting a borrower’s Motion for Summary Judgment and final judgment to permanently enjoin LaSalle Bank National Association from foreclosing on the borrower’s property. The Order stated: “First, the Court is surprised to the point of astonishment that the defendant trust (LaSalle Bank National Association) did not comply with the terms of its own Pooling and Servicing Agreement and further did not comply with New York Law in attempting to obtain assignment of the plaintiff Horace’s note and mortgage. Second, plaintiff Horace is a third party beneficiary of the Pooling and Servicing Agreement created by the defendant trust (LaSalle Bank National Association). Indeed without such Pooling and Servicing Agreement, plaintiff Horace and other mortgagors similarly situated would never have been able to obtain financing”.

The Plaintiff filed an extensive Memorandum of Law in support of its Motion for Summary Judgment which cited numerous provisions and cases as to New York Trust law and also the recent Ibanez decision from Massachusetts, and was also supported by an Affidavit and testimony of an expert in the area of securitization. As a result of this decision, we will be filing similar Motions in many of our securitization cases.

We thank one of our clients for bringing this incredibly significant decision to our attention.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

May 13, 2011

The Texas First District Court of Appeals issued a decision yesterday in Case No. 01-10-00020-CV (decision dated May 12, 2011) which affirmed a summary judgment entered by the Harris County trial court in favor of the homeowners against Wells Fargo as “trustee” of a securitized mortgage loan trust. Wells Fargo had filed an application for an expedited non-judicial foreclosure. The homeowners, pursuant to the Texas Rules of Civil Procedure, timely filed a Petition challenging Wells Fargo’s application prior to the entry of an Order on the application, which filing automatically abated and dismissed the application.

Wells Fargo counterclaimed for foreclosure in the case filed by the homeowers, in which the homeowners sought a declaratory judgment that Wells Fargo did not own the Note and thus had no standing to foreclose. The borrowers prevailed. That same day, Wells Fargo filed a separate action against the homeowners which contained the same claims as it had asserted as counterclaims in the trial on the homeowers’ action.

The trial court granted summary judgment to the homeowners on Wells Fargo’s second action, which Wells Fargo appealed. The Appeals court affirmed the summary judgment, rejecting Wells Fargo’s “void judgment” and other arguments, holding that the doctrines of res adjudicata and collateral estoppel barred Wells Fargo from attempting to re-litigate the very threshold issues that it lost in the trial of the homeowners’ lawsuit (that being that it failed to prove that it owned the promissory note).

We thank one of our dedicated readers for bringing this to our attention today.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

May 10, 2011

We are seeing a disturbing pattern of misconduct emerging in Florida in cases where “new” attorneys are taking over the representation of foreclosing Plaintiffs who were former clients of David J. Stern, P.A. and other foreclosure mills. These “new” law Firms, including but not limited to Albertelli Law of Tampa and McCalla Raymer of Orlando, are filing documents in cases where W. J. Barnes, P.A. is and has been counsel of record for the borrower for long periods of time, but not copying the Barnes Firm on such filings. This demonstrates that these “new” law Firms are not reviewing the court file, and the result is an apparent attempt to cause court proceedings to take place without notice to the borrower’s counsel.

Not providing a copy of any filing to a party’s counsel of record is not only illegal, but unlawful and unethical as well, and is especially egregious if that filing is a Motion for Summary Judgment or Notice of Hearing. We have been made aware of this because certain of our clients have copied us with papers they have received from the plaintiff’s “new” Firm which do not show a copy of the paper to their counsel of record. We hope that the Judiciary will command that these “new” law Firms show cause why sanctions should not be entered against them.

Separately, registration for FDN’s foreclosure defense seminar scheduled for Friday, May 20, 2011 in Edison, New Jersey closes this coming Monday, May 16, 2011. Registration forms are available by e-mail request to [email protected]. Again, the seminar is only for attorneys and paralegals associated with law Firms.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

May 3, 2011

Last Thursday, April 28, 2011, FDN attorney Jeff Barnes, Esq. obtained another dismissal of a foreclosure and  awards of attorneys fees against two banks in cases in Lee County, Florida. Two other cases were removed from the “rocket docket” and are being sent back to the presiding Judge for hearings on objections asserted by the foreclosing plaintiff to Mr. Barnes’ discovery requests. Courts in Florida, New Jersey, and Oregon have already compelled this same discovery to be produced in cases where Mr. Barnes is representing the borrowers, and dismissals of foreclosures have been the sanction in cases in New Jersey and Florida where the foreclosing plaintiff has not complied with the discovery and orders compelling the documentary discovery. Two of the cases in New Jersey were dismissed without even a Motion to Compel pending, which is a clear signal that Judges are not going to tolerate a foreclosing plaintiff’s noncompliance with a borrower’s discovery.

In Washington, a Federal Judge in a case which was filed in state court by a borrower challenging a foreclosure but which was removed to Federal court has issued an Order which has stayed a foreclosure involving a securitization and MERS pending the resolution of a certified question to the Washington Supreme Court as to MERS’ authority and claim to be a “beneficiary” under the Washington Deed of Trust Act. The Order also extended the state court injunction against any foreclosure, and also stated that the plaintiff may have a cause of action for breach of duty of good faith against the trustee sale company.

The plaintiff had asserted a claim for breach of fiduciary duty against the company which was rejected by the Court, but the Court’s Order opened the door to a claim for breach of duty of good faith against the trustee sale company. This ruling is the first of its kind that we are aware of that permits a borrower to assert a direct claim for breach of duty against the trustee sale company. We are utilizing this recent ruling in our Washington-based cases involving securitizations and MERS to likewise request a stay of any foreclosure pending the resolution of the certification issues in the Washington Supreme Court.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 27, 2011

FDN’s foreclosure defense seminar for attorneys and paralegals in Edison, New Jersey is just 23 days away (Friday, May 20, 2011). Registration closes on Monday, May 16, 2011. Registration forms are available by e-mail request to [email protected].

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 27, 2011

The Michigan Court of Appeals has issued a decision for publication dated April 21, 2011 which undoes MERS’ ability to institute non-judicial foreclosures by publication. The very well-reasoned opinion goes through the history of what MERS is using much of the MERS case law which FDN has been using in cases across the United States, and analyzes this against the Michigan foreclosure by advertisement statute, which does not contain any provisions for “nominees” or other non-owners of promissory notes to institute foreclosure.

The case distinguishes the Jackson decision from Minnesota, noting that the Minnesota statute does permit a nominee to undertake foreclosure action. Michigan’s statute is very different, and the Court went to significant length to set forth the reasons why MERS does not qualify as a party with the ability to institute foreclosure under the Michigan statute.

FDN has added additional counsel in Michigan, and our attorneys have already prepared Motions for Summary Judgment in MERS cases based on this new appellate decision.

Separately, one of the presiding Judges in the Ft. Myers (Lee County, Florida) foreclosure division announced today at a “docket sounding” that the current foreclosure system there (which those of us who practice there know to be the “rocket docket”) will cease to exist as of June, 2011. This announcement came in the wake of the recent ACLU appeal to the Florida Second District Court of Appeal which illustrates the constitutional infirmities with the current Lee County foreclosure system.

Although the Judge announced that the Court “has no firm exit stragtegy” from the present system, Jeff Barnes, Esq., who was present in that court today for a hearing, also discussed the matter with several court personnel after the hearing, who advised that they have been told that the cases will probably revert back to the original assigned Judge to proceed in the normal manner of other civil cases.

This is a step in the right direction. Borrowers will now be provided with the same protections in litigation as other, non-foreclosure litigants, and not be subjected to the arbitrary and debilitating “rocket docket” procedures which essentially railroaded foreclosure cases through a system of disparate treatment and to the advantage of the trustee banks, servicers, and “rent-a-lawyers” who appeared at the rocket docket hearings for the foreclosure mills day after day for the purpose of “rapid disposition” of borrowers’ interests in their homes and investment properties.

Jeff Barnes, Esq., www.ForeclosureDefensenationwide.com

April 21, 2011

Judge Lynn Tepper of the Pasco County (6th Judicial Circuit), Florida Circuit Court has dismissed, on the same day, two separate foreclosure actions filed by SunTrust. Both of the March 15, 2011 Orders require SunTrust, on the filing of any Amended Complaint, to do the following:

   (a)  Plead a chain of ownership and holdership to establish its standing to sue at the inception of the case, and in so doing, SunTrust must remedy the inconsistencies contained in the original Complaint; and

   (b)  Plead its capacity to sue and its ability to maintain an action within the Court’s jurisdiction; and

   (c)  If SunTrust is not the owner of the note, it must specifically plead ultimate facts identifying the owner and SunTrust’s authority to act as representative for said owner, attaching proof of said representative authority; and

   (d)  If SunTrust has accelerated the note at issue it must attach a copy of the notice of acceleration upon which it relies; and

   (e)  If not previously filed, SunTrust must post the required cost bond (under the Florida statute cited.)

The Order also and further requires SunTrust to comply with the amended version of Rule 110(b) of the Florida Rules of Civil Procedure and Florida Statute 92.525 which requires that the Amended Complaint be properly verified as part of the Complaint and not as a separate pleading.

Bravo and kudos to Judge Tepper for: (i) upholding the form and substance requirements of verification of mortgage foreclosure actions enunciated by the Supreme Court of Florida and Florida decisional law; (ii) upholding the ultimate fact pleading requirements for civil cases in Florida; and (iii) requiring SunTrust to plead facts to establish standing to sue at the outset of the case, and not by post-filing “cleanup” or other method. We are currently representing borrowers who are in foreclosure litigation with SunTrust or who have been threatened with foreclosure by SunTrust where SunTrust has admitted that it does not own the note and where the note is (allegedly) owned by FNMA, with SunTrust claiming that it has “authority” to act for FNMA as alleged “owner” of the note.

The Orders were entered in Pasco County, Florida case numbers 2010-CA-1339 ES and 51-10-CA-1306 ES. We thank one of our dedicated readers for providing this important update in Florida.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 15, 2011

FDN will be hosting its next two foreclosure defense seminars on the following dates: Friday, May 20, 2011 in Edison, New Jersey; and Friday, June 24, 2011 in Newport Beach, California. Space is limited, and registration for the New Jersey seminar has been brisk. Registration Forms are available by e-mail request to [email protected].

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 14, 2011

We have been railing against the misdeeds, faulty paperwork, and wrongful actions of MERS for now going on four (4) years. Although most Judges have seen the truth and have ruled accordingly against MERS, there are certain holdouts who continue to (wrongfully) equate MERS “solely a nominee” with MERS “as an agent” and have otherwise approved MERS’ faulty practices. Fortunately for all of us, the United States Department of the Treasury, the Board of Governors of the Federal Reserve, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, and the Federal Housing Finance Agency have found, apparently after an exhaustive investigation, that MERS and MERSCORP have committed a series of serious failures with respect to their operations and management in connection with services provided to Examined Members related to initiating foreclosures, including the following (from page 5, paragraphs 4 and 5 of the Consent Order as to MERS):

     (a)  have failed to exercise appropriate oversight, management supervision and corporate governance, and have failed to devote adequate financial, staffing, training, and legal resources to ensure proper administration and delivery of services to Examined Members (e.g. mortgage lenders and servicers); and

     (b)  have failed to establish and maintain adequate internal controls, policies, and procedures, compliance risk management, and internal audit and reporting requirements with respect to the administration and delivery of services to Examined Members; and

     (5) by reason of the conduct set forth above, MERS and MERSCORP engaged in unsafe or unsound practices that expose them and Examined Members to unacceptable operational, compliance, legal, and reputational risks. (empasis added).

     Shazam!!! A series of findings by multiple Federal agencies (which MERS and MERSCORP do not admit or deny) that MERS and its parent corporation engaged in unsafe or unsound practices in connection with initiating foreclosures which expose them and the lenders, “trustee” banks, and servicers to UNACCEPTABLE legal risks!

     About time. Those of us who live in this world are more than aware of the never-ending parade of fraudulent acts undertaken by MERS on almost a daily basis; MERS’ consistent violations of its own self-imposed regulations and limitations; and MERS’ violations of trusts documents, trust law, and regulations and contract requirements applicable to securitized mortgage loan trusts. These findings should prompt every Judge who has a case with MERS issues being litigated to take a serious step back and put the brakes on any foreclosure until ALL of the actions of MERS are fully analyzed against MERS’ own Terms and Conditions, any trust documents, and applicable law. The various Federal agencies have recognized and confirmed the misconduct, so it is time for the Courts to do likewise.

Jeff Barnes, Esq., www.ForeclosureDefensenationwide.com