E-FILING BECOMES MANDATORY IN COLORADO; FDN CHALLENGES FORECLOSURES IN COLORADO

December 6, 2010

Numerous coiunties in Colorado are adopting mandatory electronic filing requirements, not only for existing cases but for newly-filed cases as well. Elbert County adopted this system as of December 1, 2010; other counties already have the same requirement.

FDN’s Jeff Barnes, Esq. has been and continues to defend cases in Colorado, having been licensed in Colorado as of 1990. Mr. Barnes’ office has implemented a scanning system to comply with the new e-filing requirements of Colorado counties.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

PENNSYLVANIA ROUND II: FORECLOSURE MILL ATTORNEYS ADMIT UNDER OATH THAT NO LAWYER REVIEWED OR READ FORECLOSURE FILINGS; BANK OF AMERICA KNEW OF PRACTICE YET CONTINUED TO COLLECT “ATTORNEYS FEES”; THOUSANDS OF PENNSYLVANIA FORECLOSURES SUBJECT TO ATTACK AND RETURN OF “ATTORNEYS’ FEES” TO BORROWERS

December 6, 2010

(From an article in Daily Finance of 12/02/10 sent to us by one of our readers):

 Three partners of a Pennsylvania foreclosure mill (Goldbeck McCafferty and McKeever) have admitted, under oath, that no attorney ever read or reviewed thousands of foreclosures filed by the Firm, although the filings contained an “attorney” signature and the actions sought and collected “attorneys’ fees” in connection with the foreclosures. The article states that high-ranking Bank of America employees had actual knowledge of this procedure yet continued to reap significant “attorneys’ fees” payments from borrowers in these actions, with this practice being evident through as late as November 24, 2010.

Bank of America is the Goldbeck Firm’s top client. Although other foreclosure clients have stopped doing business with the Goldbeck Firm, B of A continues on, stating only that it is “evaluating its position” with the Firm.

The article goes on to state that literally thousands of Pennsylvania foreclosures are now subject to attack, including demands for return of “attorneys’ fees” paid by borrowers for work by non-lawyers.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FDN NETWORK EXPANDS TO COVER TENNESSEE, ADDITIONAL COUNTIES IN ARIZONA, AND INDIANA

December 3, 2010

The FDN attorney network continues to expand, with recent additions of law Firms which are now handling foreclosure defense in eastern and western Tennessee, an expanded area in Indiana, and the counties of Maricopa, Yavapai, Pima, and Pinal in Arizona. FDN will also shortly be adding attorneys in the Los Angeles, California area as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

PENNSYLVANIA COURT REVERSES BORROWERS’ MOTION TO SET ASIDE SHERIFF’S SALE AND STRIKE DEFAULT JUDGMENT IN FORECLOSURE BROUGHT BY WELLS FARGO AS SECURITIZED TRUSTEE: COURT NOTES SUSPECT ASSIGNMENT

December 2, 2010

A Pennsylvania Superior court, in an appeal from an Order of the Court of Common Pleas of Allegheny County, has reversed a trial court order which denied the borrowers’ motion to set aside a sheriff’s sale and strike a default judgment in favor of Wells Fargo as the trustee of a securitized mortgage loan trust. The case, Wells Fargo Bank N.A. as Trustee for the MLMI Trust Series 2005-FF6 v. Lupori, 2010 PA Super 205 (November 12, 2010) was confined to one issue: that being whether the trial court committed error as a matter of law in denying the borrowers’ motions because the record on the date of judgment lacked any evidence whatsoever to establish that Wells Fargo was the real party in interest and possessed standing to prosecute the foreclosure. The court held that the trial court so erred.

The Court noted that the Complaint alleged an assignment of the mortgage loan from First Franklin to First Franklin Financial Corporation, but made no mention of any other assignment, and nowhere in the Complaint did Wells Fargo identify itself as the owner of the mortgage. In opposing the borrowers’ motions, Wells Fargo asserted that it received an assignment of the Corporation’s rights to the mortgage on April 1, 2005. The Court found, however, that the Complaint did not comply with Rule 1147(a)(1) of the Pennsylvania Rules of Civil Procedure, and that the April 1, 2005 assignment was not in the record at the time of the default judgment, thus warranting reversal of the trial court’s order.

In reversing the trial court’s order, the Court cited to Pennsylvania law which holds that where a defect or irregularity is apparent from the face of the record, the prothonotary will be held to have lacked the authority to enter a default judgment and the default judgment will be considered void.

The Court noted in footnote 2 of its opinion that “The alleged assignment from the Corporation to Wells Fargo predates the assignment from the Bank to the Corporation. Wells Fargo argues on appeal that its assignment from the Corporation was a valid equitable assignment, despite the Corporation’s lack of an interest in the mortgage at the time it purportedly assigned the mortgage to Wells Fargo.” As the Court disposed of the matter on other grounds, the Court stated that “we need not reach this issue”.

We will thus say here what the Court hinted at with its descriptive language but which it declined to reach: the “purported” assignment to Wells Fargo was a fraud, period. It is readily apparent that Wells Fargo dummied up a fraudulent assignment in an attempt to cure the standing issue after the fact. Here, then, is proof positive of fraudulent conduct on the part of Wells Fargo in an attempt to sustain a foreclosure attempt, as we have seen time and time and time again across different jurisdictions in our cases.

We laud the Pennsylvania court for holding Wells Fargo to its burden and exposing this fraud to the public. 

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

 

 

FDN LOAN AND TRUST INVESTIGATION RESEARCH CENTER AND TEAM NOW IN PLACE

December 1, 2010

FDN announces that its mortgage loan and securitized mortgage loan trust investigation research Center and team are now in place and fully operational. The Center is located in Boca Raton, Florida and is being staffed by multiple paralegals who are associated with the FDN network of attorneys and who have been trained in the use of specialized software and access to databases which not only track the history of a loan, but also identify which tranches of a securitized mortgage loan trust the loan has been placed into and whether the loan actually made it into a particular trust (notwithstanding any alleged “assignment” to a trust by a foreclosing party, MERS, or otherwise).

Loan and securitized trust investigations are available at any stage of a foreclosure proceeding provided the requisite information as to the loan (e.g. loan number) and name of the trust are provided.

For more information, please e-mail us.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com 

 

 

FORECLOSURE DEFENSE ATTORNEY HANDBOOKS TO BE RELEASED DECEMBER 6, 2010

November 24, 2010

FDN will be releasing and making available the first edition of the Foreclosure Defense Attorney Handbook for attorneys and paralegals. The Handbook is designed for attorneys and law Firms interested in foreclosure defense or beginning a foreclosure defense practice.

Handbook topic areas will include:

   (a)  Initial case screening and client objectives;

   (b)  identifying preliminary defenses in foreclosure documents (judicial and non-judicial foreclosures);

   (c)  assignments of mortgages (judicial) and Deeds of Trust (non-judicial);

   (d)  Substitutions and Notices of Trustee or Foreclosure Sale (non-judicial);

   (e)  MERS

   (f)  The Complaint, Temporary Restraining Order, and Preliminary Injunction (non-judicial proceedings);

   (g)  The Answer, defenses, and Counterclaim (judicial proceedings);

   (h)  Discovery (Requests for Production, Interrogatories, and Requests for Admissions);

   (i)  Defending Motions to Dismiss and Motions for Summary Judgment.

Cost of the Handbook is $295.00 which includes 2-day Priority Mail shipment. Available only to attorneys and paralegals. Order forms are available on e-mail request. Please include state bar identification and number (if attorney) or name and address of law Firm affiliation (if paralegal). Shipments will begin Monday, December 6, 2010. Handbooks will be shipped within approximately 48-72 hours from receipt of completed order form and payment.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

COLORADO FORECLOSURE VICTIMS: BE AWARE OF YOUR RULE 120 HEARING

November 22, 2010

A November 18, 2010 article in the Boulder (Colorado) Weekly newspaper has attempted to alert homeowners in Colorado of an impending foreclosure crisis about to hit the state. The article also discusses the importance of what is known as a “Rule 120” hearing, which is a hearing where the foreclosing party requests the court to set a foreclosure sale date. The Rule permits the homeowner to oppose the request, and if there is no opposition, it makes defending the foreclosure much more difficult.

The problem with Rule 120 as it is worded is that it is very restrictive, only asking if there is a default and if the borrower is in the military. Fortunately, the Colorado Supreme Court issued an opinion back in 1989 stating that such a restrictive reading of the rule is improper, and that a court should permit matters such as the defense that the foreclosing party is not the real party in interest to be raised at the Rule 120 hearing.

Unfortunately, it seems, from the article, that Colorado District Court judges are not following the ruling of the Colorado Supreme Court and are letting banks literally get away with foreclosing without ever having to show that they own the Note and Deed of Trust through actual evidence, and simply presenting the Note at the hearing is sufficient even if there are serious questions as to how the foreclosing party came into the rights under the Note and Deed of Trust.

The article goes on to point out the inherent deficiencies in this type of process. Obviously the message here is that borrowers need to (a) be aware of their Rule 120 hearing and mount any proper challenge if warranted, and (b) make sure the judges know of the Supreme Court’s dictates on what is to be presented at a Rule 120 hearing.

Interestingly, this article comes on the heels of our receiving many inquiries from Colorado borrowers in the past few weeks who did not even know whether a Rule 120 hearing took place in their case or not. If it did and there was no notice of the hearing to the borrower, a due process challenge should be made. However, in view of the article, what appears to need to be done is an overhaul of the Colorado foreclosure system as a whole.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FDN FORECLOSURE DEFENSE SEMINAR BRINGS ATTORNEYS FROM ACROSS THE UNITED STATES

November 22, 2010

The November 19, 2010 session of FDN’s live foreclosure defense seminar series brought attorneys to Newport Beach from New Jersey, Illinois, and greater Los Angeles. Participants were provided with a detailed notebook and a full day of instruction in beginning foreclosure defense. The following topics were covered for both judicial and non-judicial foreclosure proceedings:

                    (a)  Identifying Preliminary Defenses

                    (b)  MERS and MERS Assignments

                    (c)  Credit Enhancements and Insurances (Securitized Mortgage Loan Trusts)

                    (d)  Discovery

                    (e)  Injunctive and Declaratory Relief and other remedies

                    (f)  Filing and Defending Dispositive Motions

                    (g)  Forebearance Agreements and Loan Modifications

The notebooks contain exemplar pleadings and responses to Motions to Dismiss and for Summary Judgment; discovery templates; actual disclosures from securitized trust documents; and case law.

Participants also enjoyed the sumptuous, day-long hot and cold buffet which included desserts, fresh fruit, and beverages.

The next seminar is scheduled for Friday, December 17, 2010 in Newport Beach, California and is also for attorneys and paralegals associated with law Firms. We are already receiving requests for registration for this session. The January seminar is scheduled for Friday, January 7, 2010. Future seminars are being scheduled for February and March, 2010 as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com 

FDN NETWORK OF ATTORNEYS EXPANDS IN ARIZONA, TENNESSEE, AND NEW YORK

November 17, 2010

The FDN attorney network will now be climbing to 34 law Firms nationwide. Arrangements are being finalized with additional local counsel in Arizona (to handle cases in Maricopa, Pinal, and Yavapai counties); Tennessee (Knoxville and Nashville areas); and New York (the five boroughs of Manhattan, Queens, Brooklyn, Bronx, and Staten Island/Richmond, and the White Plains area). Specific details will be published shortly.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

CHIEF JUSTICE OF FLORIDA SUPREME COURT DIRECTS ALL FLORIDA CIRCUIT JUDGES TO EXAMINE THEIR CURRENT PRACTICES IN FORECLOSURE PROCEEDINGS AND TO ENSURE THAT THE PROCEEDINGS ARE “ENTIRELY” CONSISTENT WITH THE CONSTITUTIONAL, STATUTORY, PROCEDURAL RULE, AND CASE LAW REQUIREMENTS AS TO PROCEEDINGS BEING OPEN TO THE PUBLIC

November 17, 2010

In a Memorandum dated today from Florida Supreme Court Chief Justice Charles T. Canady to Chief Judges of the Florida Circuit Courts, Justice Canady has attached a letter received from the Florida Press Association and other organizations detailing incidents of denial of access to foreclosure proceedings by court personnel and Judges. The denials were made to pro se litigants, observers, and at least one reporter. 

In one instance, a court observer in Hillsborough County (Tampa) was told that foreclosure proceedings were not open to the public. In another incident in Duval County (Jacksonville), a pro se borrower was told by court security that she could not access foreclosure proceedings because only attorneys were permitted. In another instance in Orange County (Orlando), a court observer was told that foreclosure hearings were held “in private chambers” and not open to the public. The same type of incident was reported to have occurred in Citrus County. In Jacksonville, a separate, distrubing incident occurred which you may have read about in Matt Taibbi’s column in Rolling Stone magazine.

Apparently, a legal aid attorney in Jacksonville attended a foreclosure proceeding accompanied by Mr. Taibbi, who attempted to interview a pro se litigant after the case was heard. Later that day, the Judge sent an e-mail to the attorney “castigating her for bringing the reporter into the proceedings” and stated that “members of the media are only permitted upon proper request to the security officer”, furthering threatening the attorney with contempt if a reporter attempted to interview a homeowner coming out of a foreclosure hearing.

Our threshold questions are:

     What are they trying to hide?

     What are they trying to keep from homeowners from learning about their system?

     What “secrets” about the foreclosure “railroad” system are they trying to prevent the press and borrowers from discovering?

This arrogant, vicious, and threatening conduct is not only unconstitutional, but manifests an outright bias against borrowers attempting to defend their cases and against members of the media attempting to report the truth. When Judges start banning observers from public court proceedings and threatening attorneys for bringing reporters to court, echoes of Nazi Germany come to mind. Fortunately, Chief Justice Canady has now issued the directive that this kind of conduct is to stop at once.

What also needs to be ordered is that foreclosure counsel, particularly certain “local” attorneys who handle hearings for the likes of The Law Offices of David J. Stern, Shapiro & Fishman, The Law Offices of Marshall C. Watson, Florida Default Law Group, and their ilk be likewise admonished and ordered to abide by the Constitution, Court Rules, and case law as well and to stop treating borrowers and their counsel with arrogance and disrespect (which we have observed on numerous occasions). One such attorney has recently gone so far as to represent to the Court that he is appearing for one of these law Firms to argue a Motion, but then refuses to accept a copy of an Order reflecting the Judges’ ruling at the hearing.

Justice Canady’s Memorandum states that he is confident that with the cooperation of all judges and court staff “along with the tools of the revised rules of court procedure [including the Foreclosure Complaint verification requirements of the Florida Supreme Court], implementation of the managed mediation program, and the influx of court resources” that “the Florida courts will be able to meet this challenge in a manner that protects and preserves the rights of all parties as well as interested observers.” Again, “the rights of ALL parties”, which includes pro se litigants and members of the press.

The message from On High is thus clear: cut the crap and comply with the Law and the Rules which have been enacted to protect everyone. If the Circuit Judges want to get mad at someone, they should direct their anger and frustration at the real perpetrators: the Banksters and their RICO Enterprise tool known as MERS, for causing this debacle nationwide; consistently filing fraudulent documents in court; lying about owning mortgage paper and obligations; and perpetrating on this country what is probably the greatest and most massive fraud ever schemed in the history of the United States. Fortunately, more and more members of the Judiciary are recognizing that the borrowers are the victims and not the bad people that the Banksters’ attorneys consistently and wrongfully portray them to be.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com