April 12, 2011

Jeff Barnes, Esq., representing an LLC-owned apartment complex in Indiana, has successfully defeated a Motion for Summary Judgment which was filed by Deutsche Bank as trustee of a securitized mortgage loan trust. The Court candidly admitted that this was its first case involving securitization of mortgage loans. Mr. Barnes prepared the legal memoranda and personally argued at the hearing. The Court denied the summary judgment, stating that there were genuine issues of material fact.

This decision is important not only because it shows that commercial loans have also been securitized, but further as it appears to be the first such ruling on a commercial securitization foreclosure case in the State of Indiana. Mr. Barnes is also representing other borrowers in Indiana involved in foreclosures filed by Deutsche Bank as “trustee” for securitized mortgage loan trusts with individual home loans. 

In Florida, choas is the order of the day following the David J. Stern debacle. As those of you who follow this website are aware, Stern recently requested more time from the Palm Beach Circuit Court to withdraw from over 100,000 foreclosure cases, which request was denied by the Court. What has happened is that the former Stern clients (primarily securitization “trustee” banks and servicers) have been scrambling to obtain new counsel. The result has been literal chaos, disorder, and confusion. In several cases where Jeff Barnes, Esq. represents the borrowers, the “new” law Firm has admitted to failing to copy Mr. Barnes on court filings and confusing one case with another. In other cases, multiple attorneys have appeared for the same hearing on behalf of the Plaintiff, without each knowing the other was involved.

It is only going to get worse. With Stern notifying the world that his Firm is in the process of withdrawing from over 100,000 foreclosure cases in Florida alone, the nightmare is sure to continue.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 9, 2010

We previously posted that two of the New Jersey foreclosure mills had opposed the application of Jeff Barnes, Esq. for admission to the courts pro hac vice, and that all such “objections” were denied. This week, another New Jersey Judge has granted Mr. Barnes’ admission, this time to the Morris County Chancery court in a case where U.S. Bank is the securitization “trustee”. The Order granting the application was significant in that it made reference to the fact that the borrowers specifically stated that they wanted Mr. Barnes to represent them, and that pursuant to recent decisions by other judges, including the Chief Judge, the case in which the application was made (which is a securitization case) is deemed to be “complex” under New Jersey’s Rules of Court.

This is an important milestone development in view of the mantra repeatedly espoused by attorneys for foreclosing “trustee” banks such as Deutsche Bank, U.S. Bank, and Bank of America, who consistently argue to the courts that “this is just a routine foreclosure”. As those of you who follow this website know, there is nothing “routine” about a securitization, with more and more aspects and nuances of the complicated world of mortgage-related derivatives emerging now almost daily.

A prime example of this is a recent discovery by our loan and trust investigator of Fitch’s “upgrade”, in 2006, of a RALI series securitization which generated $9.96 billion (yes, that’s billion) which purchased mortgages from various banks, including SunTrust. The narrative states that the overwhelming majority of the mortgage pool consists of 30-year fixed rate loans on primary residences with an average borrower FICO score of 715. If this is true and the mortgage-backed securities collateralized by this trust were “upgraded” based on this information, how then does MERS or anyone else get away with assigning a toxic, non-performing loan to such a trust years after it closed for purposes of furthering a foreclosure?

Our investigator has also advised us that as of April 8, 2011, the Mortgage Bankers’ Association is demanding more information on insurances available to servicers when a mortgage loan goes into “default” status. This is the same insurance which many attorneys representing servicers have said “does not exist” or “is not relevant” to a foreclosure. Well, if the servicer which instituted the foreclosure claiming a default on the loan has in fact received insurance proceeds in connection with the claimed default, how is that information not relevant to the issue of the amount allegedly “due” on the loan as demanded by the party seeking foreclosure?

Separately, in a hearing in the Monroe County (Key West) Florida court yesterday, Mr. Barnes successfully defended a summary judgment motion filed against a Florida borrower by Iberia Bank as alleged successor to Orion Bank, which was the original lender. The borrower was approved for a loan modification by Orion and made her first 2 monthly payments on the modification, which payments were accepted by Orion Bank. However, when Iberia Bank “took over” after Orion failed and went into FDIC receivership, Iberia took the position that the approved loan modification with the original lender was “not valid”; refused to honor the modification which the borrower made payments on and which had been accepted by the original lender which approved the modification; declared a default on the pre-modification loan balance; and instituted foreclosure. The Judge denied Iberia’s Motion for summary judgment, stating that there were genuine issues of material fact present.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 8, 2010

We have previously advised Colorado borrowers of the importance of Colorado’s Rule 120 procedure, where the foreclosing party files a Motion asking the Court to schedule a foreclosure sale. We have also advised that if the borrower has a challenge to the foreclosure that it should be made in response to the Rule 120 Motion, which response should only be done through an attorney.

This week, we were informed that Wells Fargo is telling borrowers who have applied for a loan mod “not to worry” about the Rule 120 hearing and not to attend it, as they are in loan modification. THIS IS ABSOLUTELY FALSE AND FRAUDULENT. It is obvious that Wells Fargo is doing this to circumvent the borrower’s legal right to challenge a foreclosure, so that when the loan mod request is ultimately denied (which the overwhelming majority are), Wells Fargo can then foreclose on the date set by the Court at the Rule 120 hearing, where the borrower did not appear and did not file a challenge to the foreclosure request.

In New Jersey, Jeff Barnes, Esq. was admitted pro hac vice in two more Chancery courts over the objection of the foreclosure mills Zucker Goldberg and Fein Such. We view these “objections” to a borrower’s right to retain the counsel of their choosing to be in bad faith and asserted for no legitimate purpose in an effort by the foreclosure mill to attempt to (wrongfully) seek to control who represents the borrower or who the borrower can retain for legal assistance. Obviously the New Jersey courts, which have consistently overruled these “objections”, feel the same way, and have, by their rulings, ensured that the borrower, as the client, maintains the right to control who they wish to represent them in court.

FDN attorneys have also been recently retained by Tennessee borrowers who were victims of the flood who are now not only facing foreclosure of their damaged homes, but also litigation from the property insurers who have filed lawsuits (called “interpleaders”) asking the Court to determine who is owed the insurance proceeds: the borrower/flood victim or the foreclosing party. As the insurance company’s filings have raised issues as to securitization and possible violations of the Tennessee nonjudicial foreclosure laws, we will be litigating these issues inside of the insurance company’s interpleader action.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

April 1, 2011

Borrowers who attempt to challenge a foreclosure with the “Demand For Presentment” are making themselves into April Fools. This nonsensical, illegal, and phony “technique” has been universally rejected by courts across the nation and has absolutely no basis in either statutory or decisional law to legally challenge a foreclosure. We continue to be bombarded with horror stories of borrowers who have had their hind quarters handed to them by Judges who are presented with the “Demand”.

The problem is that there is so much malarky out there on the internet, much of it being perpetrated by non-lawyers, which desperate borrowers are latching on to and then losing their homes, or wind up having to come to attorneys begging the attorney to try to find a way out of the morass after the case has already been poisoned. The same goes for such arguments as “the bank did not lend me money”, or “the bank was not a bank”, and the like.

Which leads then to the loan and trust investigation scammers. We have been advised of a man who is holding himself out as a loan and trust “investigator” who is not an attorney; who has not had any formal training in loan or trust investigations; who tells people certain trusts do not exist when in fact they do; who is charging thousands of dollars for simply reprinting pages upon pages of information in his “report” which information he downloaded from the SEC public website; and who has been pirating the work of others and calling it his own.

The moral here is to be cautious and to “investigate the investigator”, as this latest cottage industry is riddled with scammers, smiliar to the “loan mod” scams of recent years before they were shut down by various Attorneys General.

Our loan and trust investigator is highly trained and has stood the test of time as to her work in cases across the United States. It took us awhile to find her, but we are glad we did.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 31, 2011

We have completed reservations for the rescheduling of the FDN foreclosure defense seminar in Edison, New Jersey, which will now be held on Friday, May 20, 2011 at the Holiday Inn. Details are on prior posts on this website, and registration forms are available by e-mail request.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 31, 2011

Several states are emerging as battleground jurisdictions as myriad new foreclosures are being filed and initiated, and in view of the lack of decisional law from these jurisdictions relating to MERS and securitization issues. We have received many new inquiries from Tennessee, Colorado, Oregon, Washington, and Hawaii where borrowers have been attempting, unsuccessfully, to defend the foreclosure actions by themselves, which we always advise is a disaster waiting to happen. This is especially true where there is a lack of applicable case law on the issues. In fact, a number of our recent new cases are “cleanup” cases where we have had to completely amend a pro se court filing in order to properly frame the issues and have the pleading comply with local procedural requirements. 

At his second Management Conference this week in New Jersey, Jeff Barnes, Esq. and his local counsel have advised the Chancery Judges of the stall, delay, and obstructive tactics of the New Jersey foreclosure mills, which repeatedly engage in “robo-denials” of Requests for Admissions (even as to matters which are apparent by nature of the Plaintiff being the alleged “trustee” of a securitized mortgage loan trust); meritless objections to the production of securitization and trust documents; and refusals to comply with court orders compelling such documents.

In a recent exchange of correspondence between his Firm and the Palm Beach County, Florida Circuit Court, the now infamous David J. Stern has advised the Court that his Firm is in the process of withdrawing from representing the foreclosing Plaintiff in over 100,000 foreclosure cases filed by his Firm. The Court denied Stern’s request for “more time” to have the withdrawals processed (as Stern complained of a severe reduction in staff, etc.), and advised Stern that if the Plaintiff fails to appear for a Case Management Conference that the action runs the risk of being dismissed.

Kudos and bravo to the Palm Beach Circuit Court for telling Stern and his former clients that the Court will not tolerate any further clogging of its dockets and delay caused by Stern’s filing of so many foreclosures, a great many of which, based on matters revealed by the Florida Attorney General’s investigation and trial court rulings as to the misconduct of Stern’s Firm, were probably filed with phony or fraudulent documents. Jeff Barnes, Esq. has filed Motions for Attorneys’ Fees in Stern cases which have been dismissed pursuant to recent Florida case law which permits such requests to be made after either a voluntary or involuntary dismissal of a foreclosure case.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 27, 2011

FDN is pleased to announce that it has added the law offices of John R. Sterbick, P.S. in Tacoma, Washington to the FDN network to assist with Seattle-area cases. As we have previously published on this website, Washington has a “use it or lose it” trustee’s sale statute, which requires a borrower to file an action to challenge a foreclosure sale before the sale takes place in order to preserve a challenge to the foreclosure. Failure to do so limits, by statute, the borrower’s post-sale remedies solely to damage claims which cannot in any way affect title to the property, or create a lien on the property, or affect the rights of anyone who purchased the property at the sale.

We have also just received a number of inquiries from borrowers who are being subjected to foreclosure proceedings by SunTrust Mortgage, Inc. Our ongoing litigation with SunTrust reveals that SunTrust did in fact sell off mortgage loans to third parties, but retained servicing rights under the same corporate name leading borrowers to believe that since the name of the “lender” and the name of the foreclosing party are the same that no transfer of the loan occurred. It was only through our rigorous discovery that SunTrust’s practices were revealed.

In New Jersey cases, the foreclosure mill Zucker Goldberg continues to obstruct and refuse to produce discovery, including securitization documents, despite a history of court orders compelling such discovery and court-ordered dismissals of foreclosure actions filed by the Zucker Firm as a sanction for failure to comply with court orders compelling this discovery in cases where Jeff Barnes, Esq. and local New Jersey counsel Michael Jacobson, Esq. represent the borrowers and have repeatedly sought this discovery. The same discovery which has been compelled by the New Jersey Chancery Courts (which handle foreclosure cases in New Jersey) has also been recently compelled, on Motion filed by Mr. Barnes, in cases in Oregon and Florida.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

March 22, 2011

In a proposed agreement with New Jersey’s six largest mortgage servicing companies, the New Jersey judiciary would end the judiciary’s proceeding filed last December which threatened to shut down foreclosures and sales. The agreement would instead require servicers to file papers by April 1, 2011 showing that they have “cleaned up” their improper foreclosure practices such as using robo-signers. We anticipate foreclosures to thus resume and “ramp up” if this proposal is finalized.

We have had to reschedule the foreclosure defense seminar which was scheduled for Friday, April 1, 2011 in Edison, New Jersey as Mr. Barnes has been called to a specially set hearing in Hawaii to be followed by meetings with Hawaii homeowners seeking to challenge imminent foreclosures. The seminar will likely be rescheduled for the latter part of April, 2011. Please moniter this website for the new date.

Finally today, we highly recommend that anyone engaged in foreclosure defense immediately see the movie “Inside Job”. It takes a bit to get going, but it will give a primer of why we are in the situation we are in and how we got here. Just try not to throw your shoe, beer mug, wine glass, or a brick at the screen when the villians from Goldman Sachs, the Financial Services lobby, etc. start spewing their outright lies. 

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com 

March 17, 2011

FDN attorney Jeff Barnes, Esq. has scored five separate victories in five separate foreclosure defense cases in a span of less than 48 hours. On the afternoon of Monday, March 14, 2011, the Ft. Myers, Florida Circuit Court granted his Motions to Compel securitization, trust, standing, chain of title, real party in interest, setoff, and other discovery in four separate cases, which were filed by Citimortgage, Deutsche Bank, Fifth Third Mortgage, and Bank of New York by the David Stern, Marshall Watson, and Goldfarb law Firms. Entitlement to attorneys’ fees was granted in the Citimortgage, Deutsche Bank, and Fifth Third Mortgage cases. Each of the four cases involved “objections” to the borrower’s discovery which objections were filed months after the discovery request was filed, in one case the objections being filed 14 months after the discovery was originally served.

On the morning of March 16, 2011 in a separate case filed by Citibank as trustee for a securitized mortgage loan trust in Palm Beach County, the Court struck the motion for summary judgment filed by Shapiro & Fishman from the calendar. S&F filed the motion after engaging in a series of acts designed to thwart the borrower’s discovery attempts. S&F originally filed a Motion on behalf of Citibank for “additional time to formulate its responses” to the discovery requests, and then objected to 49 of the 50 categories of the discovery request. Mr. Barnes set a hearing on the objections and personally appeared, but when he left the courtroom briefly, the attorney for S&F wrongfully told the Court that Mr. Barnes “failed to appear”, resulting in an Order denying the Motion. Mr. Barnes alerted the Court to the actions of the S&F attorney, and the Court granted rehearing and reversed the prior Order. Mr. Barnes attempted to resolve the objections with S&F, but S&F’s response was only the forwarding of a “loan mod” package. When the borrower rejected the proposed loan mod, S&F filed and noticed a hearing on a Motion for Summary Judgment and refused to reschedule that hearing pending a ruling on the discovery objections per the Motion requesting the Court to do so which had been filed months earlier.

The Palm Beach Circuit Judge struck S&F’s summary judgment from the calendar and prohibited it being rescheduled until the discovery objections are resolved, which is being scheduled for a specially set hearing. This same discovery has already been compelled by courts in Oregon, New Jersey, and Florida on Motions filed by Mr. Barnes.

Last week, Mr. Barnes took depositions in Tuscon in an Arizona case which revealed a pattern of a “lender” not only luring unsuspecting borrowers into predatory loans which the lender knew the borrowers could not afford to service (but which the branch manager of the lender told them over and over again that they could), and in one instance, required a borrower to take out a $380,000.00 equity line on her home which had no mortgage on it to provide “additional security” for a construction loan after the borrower had already been lured into entering into a land acquisition loan with no conditions. It was only after the acquisition loan was entered into that the lender thereafter imposed the requirement of the equity line as a condition of the construction loan, the entirety of the equity line going right to the lender.

The borrower was thereafter foreclosed on both her home (on the equity line which was to be repaid from the sale of the new home) and the new property as well after the lender refused to release the remaining two percent (2%) of the construction loan to the general contractor so that the new home could be completed, a CO issued, and the property sold when the market was still active and commanding good prices. The lender’s purported excuse for not releasing the last 2% of the construction loan was “invoice issues” with the GC, which obviously could have been resolved after the completion of construction between the GC and the lender so that the home could be completed and sold. In another case, the lender’s “recommended” GC walked off the job after using all of the proceeds of the construction loan but only completing less than 65% of construction.

Next week, Mr. Barnes will be continuing with filing Motions in foreclosure cases in Colorado, Iowa, and Minnesota, and then traveling to New Jersey for court hearings in other foreclosure cases after which he will be attending court hearings in Hawaii before returning to Florida for more court hearings, including hearings requesting the imposition of attorneys’ fees against foreclosing Plaintiffs including JPMorgan Chase.

Mr. Barnes has also been recently approached by the WaMu Support Group for assistance in cases involving JPMorgan Chase.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide

March 1, 2011

A Colorado District Court Judge today granted Jeff Barnes, Esq.’s Motion for a Temporary Restraining Order to stop a public trustee’s sale scheduled for tomorrow morning, March 2. The Order was entered less than an hour before the Court closed. The Motion was filed yesterday (Monday, February 28) after Mr. Barnes only received notice on Friday, February 25, 2011 that the sale was to be held tomorrow.

Separately, Mr. Barnes is now handling several cases in Colorado as lead counsel, and has been requested to become co-counsel in several others in connection with challenges to foreclosure including cases involving Colorado’s Rule 120 pre-foreclosure hearing procedure. Borrowers are asserting that prior case law of the Colorado Supreme Court governing the scope of Rule 120 hearings, which case law permits issues challenging a foreclosure to be asserted in the hearing, is not being followed by certain Colorado courts.

Mr. Barnes was also recently admitted pro hac vice in Knox County, Indiana, and will be filing for similar admission to the Maui, Hawai’i court in several cases there as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com