September 23, 2010

On the heels of the recent revelations that numerous Affidavits signed by people such as Jeffrey Stephan, “Limited Signing Officer” who signed 10,000 documents a month, may be improper, Florida Default Law Group has filed a “Notice” in two cases where the borrowers are represented by Jeff Barnes, Esq. which state that Affidavits previously filed in support of Motions for Summary Judgment are being withdrawn as the Firm “has recently been notified that the information in the Affidavit may not have been properly verified by the affiant”. This language blatently attempts to shift the blame to the client, not the offending law Firm, which ruthlessly filed such fraudulent affidavits obviously without verifying their accuracy. This conduct may implicate violations of the Rules Regulating The Florida Bar including Rule 4-3.3, which FDLG cites in its “Notices”. Perhaps a Motion for Fraud Upon The Court and for Sanctions is in order.

All Affidavits filed by FDLG in any case should thus be scrupulously examined and the affiants thereof should be deposed, as should anyone who notarized these affidavits. As we received two of these “Notices” in two separate cases the same day (today), we believe that this practice of FDLG is probably more prevalent than anyone could imagine.

In a separate case in Arizona where Jeff Barnes, Esq. is representing the borrower, Chase today attempted to lock an elderly couple out of a home owned by their daughter when there has been no sale, no transfer of title, and no possession of the property by Chase. We were told by the foreclosing “substitute trustee” law Firm Tiffany & Bosco of Phoenix that Chase had made a determination that the property was “vacant”. Apparently the goons from Chase did not even bother to look through the windows to see the furniture and furnishings in this fully occupied house before attempting to break the existing locks and replace them with Chase locks. Fortunately, the Chase stormtroopers were not able to accomplish their misdeeds this time.

This is the kind of rogue arrogance which needs to be brought to the attention of the courts. Those of you who follow foreclosure blogs know of the recent whistleblower who was working in Chase’s foreclosure department who has publicly stated that “Chase is in the foreclosure business”. Being in this business does not give Chase or any other servicer the right to trample on people’s due process rights. Sooner or later, Chase needs to be sued for its misconduct.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 23, 2010

In what can only be characterized as a series of stunning victories, Jeff Barnes, Esq. and his local counsel Christine Sand, Esq. have completedly turned around what was a dead case against the borrower as of 2005. Wells Fargo had previously been granted summary judgment against the borrower in 2005 which, as those of you who read this website saw recently, was vacated by the Court after Wells Fargo sought, on the eve of trial of the borrower’s pro se counterclaim, to substitute Lehman Brothers as the Plaintiff and filed papers admitting that it did not own the Note and that the Note has been lost. The borrower thus moved for a continuance of the trial scheduled for September 30, 2010 due to these recent revelations by Wells Fargo (and in view of the fact that Wells Fargo had filed an Affidavit under oath in 2005 in support of its Motion for Summary Judgment that it owned and held the Note).

Incredibly, Wells Fargo’s counsel opposed the request for a continuance (termed “resisting” in Iowa), claiming that “there has already been a foreclosure” (that being the 2005 summary judgment, which had already been vacated before the hearing on the Motion for Continuance. The Court, however, apparently disagreed with Wells Fargo and granted the borrower’s motion for continuance. The Order not only cancelled the September 30, 2010 trial reopened discovery as well.

Our thanks to local Iowa counsel Christine Sand, Esq. for her work with Mr. Barnes on this case.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 16, 2010

JPMorgan Chase and its counsel Shapiro & Fishman have been found by a Duval County, Florida Judge to have committed fraud upon the court by filing a fraudulent assignment of mortgage from Washington Mutual (WaMu) to Chase (as servicer) when the loan was in fact owned by and carried on the books of Fannie Mae. The opinion states: “The court finds by clear and convincing evidence that WAMU, Chase, and Shapiro & Fishman committed fraud on this Court” and that “these acts committed by WAMU, Chase, and Shapiro amount to a knowing deception intended to prevent the defendants discovery essential to defending the claim”.

We constantly deal with obstructive tactics by foreclosure mills as to discovery we propound, and more and more foreclosure cases we handle are being dismissed by the Court for the foreclosing party’s failure to provide the requested discovery, with a caveat that the case cannot be refiled until the subject discovery is produced. In every such case, not one Plaintiff has produced the court-ordered discovery and has thus not refiled the foreclosure action.

Recall that Shapiro & Fishman is one of the law Firms which was made the subject of an investigation by the Economic Crimes Unit of the Florida Attorney Generals’ Office.

As such, every foreclosure case filed by Shapiro & Fishman should be thoroughly subject to intensive discovery, and every document filed by Shapiro & Fishman in a foreclosure case, including assignments of mortgage, should be thoroughly investigated to ascertain whether the statements in such documents are true or false.

Thanks to one of our dedicated readers for bringing this important decision to our attention today.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September15, 2010

We are pleased to announce that attorney Mark C. Wilson, Esq. of Overland Park, Kansas has agreed to join the FDN network, making him the 29th member of the network which has now expanded to provide representation of borrowers in Kansas (judicial foreclosure) and Missouri (non-judicial foreclosure).

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 15, 2010

Certain circuit courts in Florida are overreacting and improperly reacting to the flood of foreclosure lawsuits filed by the foreclosure mills, and are enacting local court procedures which violate due process, ignore the Florida Rules of Civil Procedure, and are resulting in more improper foreclosures in favor of “lenders”, servicers, and securitized trustee banks. Although the Supreme Court of Florida has endeavored to protect borrowers’ rights through, for example, the requirement that foreclosure complaints be verified, certain of the circuit courts are jettisoning borrowers’ rights with local court procedures which can only be described as abominations and a vicious attack on borrowers.

Miami-Dade County enacted a new procedure for foreclosures in April/May of this year which it calls the “Foreclosure Master Calendar”, whereby Motions for Summary Judgment in residential foreclosure cases and emergency motions to cancel foreclosure sales are no longer being heard by Division Judges and are relegated to the “Master Calendar”. For summary judgment motions, a Plaintiff foreclosing party submits a “summary judgment packet” to the Master Calendar, which is supposed to schedule a hearing and provide notice to counsel. However, in at least one case, the summary judgment was entered with no hearing and no notice to the borrower’s counsel, and the summary judgment motion itself was received by the borrower’s counsel on the same day that the court entered summary judgment. This procedure flies in the face of recent Florida case law which provides that any final order entered without notice is void and subject to being vacated. As such, the Miami-Dade Circuit Court has probably served to further clog its dockets with a deluge of Motions likely be filed by those who never received notice from the “Master Calendar” of a summary judgment motion.

In Broward County, foreclosure hearings are now being conducted in hallways.

In Lee County, Circuit Judges are setting “docket soundings” where a summary judgment motion can be heard, and automatically referring these “docket soundings” to a Magistrate without the consent of the parties. As the Florida Rules of Civil Procedure require that magistrate jurisdiction can only be made if consented to by all parties, the Lee County Courts have thus chosen to ignore the Florida Rules of Civil Procedure, or are hoping that the majority of homeowners are not aware of the constraints on magistrate jurisdiction so that more foreclosures can be railroaded through the system.

These procedures were obviously reactionary; were not well-thought out; and will result in those courts becoming more bogged down as more and more borrowers file motions to advise those courts that they are violating the law. These jurisdictions and others similarly inclined should, for their own benefit, review the mandatory pre-foreclosure proceedings of the 19th Judicial Circuit in Florida (which have been in place for approximately two years), which procedures insure everyone’s rights, diminish discovery disputes in any foreclosure litigation, and streamline foreclosure cases by, for example, requiring the foreclosing party to produce certain documents prior to filing a Complaint for foreclosure.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

The FDN live foreclosure defense seminar series will shortly begin, with the first session being held on Friday, October 1, 2010 in the office complex where Mr. Barnes maintains his Newport Beach, California office. Each session is an entire day (9:00 a.m. to 5:00 p.m.) and will cover many topics in foreclosure defense litigation including analysis of foreclosure documents for defensive and offensive pleading, motions, and discovery; securitization, SBM (successor by merger), and bank acquisition issues; the state of the law as to MERS and MERS-related issues; motion practice; TROs, preliminary injunctions, and declaratory relief actions; forbearance agreements; mediation, and other techniques and strategies for defending foreclosures and assisting clients with mortgage and foreclosure-related issues.

The first seminar series is for attorneys only, with the series being held on the following dates:

       Friday, October 1, 2010;

       Friday, October 22, 2010

       Friday, November 19, 2010

       Friday, December 17, 2010

       Friday, January 7, 2011

Each hour of the course has been approved for 1.0 CLE hours by The Florida Bar. Each one-day seminar thus nets 7.00 CLE hours for those states which recognize CLE-accredited courses. The seminars are open to attorneys licensed in any jurisdiction.

Registration fee includes breakfast, lunch, afternoon snacks, beverages, and parking at the site. Enrollment for each session is limited to 15 participants. Announcements will be made on this website closing registration for each session as it reaches 15 confirmed enrollees. There is no on-site registration.

Registration forms will be available beginning Monday, September 13, 2010 by e-mail inquiry to [email protected].

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

In a stunning decision, an Iowa District Court Judge has issued a 4 page written opinion vacating a 2005 summary judgment which had been entered against the borrower in favor of Wells Fargo. The decision also vacates a July 7, 2010 Order which reaffirmed the 2005 summary judgment.

The borrower retained Jeff Barnes, Esq. in 2009, who began questioning the decision in view of prior pro se filings of the borrower in which she stated that Wells Fargo had previously told her in 2004 that her loan was owned by Lehman Brothers. The 2005 summary judgment was entered on an Affidavit of a representative of Wells Fargo which stated that the affiant had read the foreclosure petition and motion for summary judgment and that the statements therein were true, one of the statements being that Wells Fargo was in possession of the note. 

Shortly after Mr. Barnes was retained, the case was set for trial. Mr. Barnes, together with local Iowa counsel Christine Sand, Esq., propounded discovery upon Wells Fargo, which was not complied with as of the time of the original trial. Wells Fargo’s counsel simply dumped a pile of unsegregated documents on counsel table on the day of trial without even a formal response to the discovery request. To date, the subject discovery (which seeks, in part, the evidence as to ownership of and chain of title to the note and mortgage) has not been fully complied with. The trial was reset to late September, 2010.

On July 21, 2010, Wells Fargo filed a Motion to Substitute Plaintiff in which it stated that “it has been determined upon information and belief that pursuant to a Servicing Agreement between Wells Fargo and Lehman Brothers Bank FSB, an assignment is required and will be executed and recorded. The holder of the note and mortgage is Lehman Brothers Bank FSB.” As those of you who read foreclosure defense websites know, Lehman previously filed for Bankruptcy.

Note that Wells Fargo states that the assignment “will be recorded”. The borrower first challenged Wells Fargo’s ownership of the note in 2004, and now, some time in the future, Wells Fargo is “going to do” an assignment?! Further, it now comes out, in 2010, that what the borrower said in her 2004 pro se filings was 100% correct.

The matter becomes even more complicated and uncertain. The Court’s opinion notes that on August 19, 2010, an affidavit was filed by a representative of Wells Fargo stating that “the original copy of the note has been lost”. In the opinion, the Court states that it premised its [prior] summary judgment ruling on Plaintiff’s possessing the note. The Court then went on to state “The validity of that premise having become increasingly doubtful, and the Plaintiff having chosen to offer nothing as to when Lehman Brothers Bank FSB became the “holder” of the note, when the note was lost, the circumstances surrounding Lehman Brothers Bank FSB becoming the “holder” of the note, or the circumstances surrounding the loss of the note, the orders granting partial summary judgment and reaffirming that judgment should be vacated and the plaintiff should be required to prove its case at trial”.

We characterize this decision as a justice delayed (through no fault of the Court or the borrower) but not denied. We hope that more members of the judiciary scrutinize foreclosures this carefully, and laud this Jurist for his diligence.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 7, 2010

A Ventura County, California Judge granted the borrower’s Motion for a Preliminary Injunction today stopping a Trustee’s sale scheduled for this Thursday, September 9, 2010. The borrower is represented by FDN’s Jeff Barnes, Esq. and Kenneth Meyer, Esq., both of whom attended the hearing. Mr. Barnes prepared the papers which were filed with the assistance of Mr. Meyer, who argued the Motion.

The borrower’s Motion highlighted that Wells Fargo had failed to comply with California Civil Code section 2923.5 which requires a foreclosing party to take certain actions prior to instituting foreclosure proceedings. Recent appellate decisional law from California issued in June of this year provides that a borrower has a private right of action for violation of the Code provision, and that noncompliance with the provision warrants the cancellation of a Trustee’s sale until the foreclosing party complies with 2923.5.

Our thanks to Mr. Meyer, Esq. for his diligent efforts in obtaining this result.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

September 1, 2010

In connection with our move to California from Nevada last week, our old internet service provider was not quite candid with us as to their ability to service the area where the new California office is located. As such, those of you who sent e-mail inquiries to us between August 26 and now may have had your e-mail rejected, so we have had to retain technicians to tackle the e-mail problem. 

You may want to re-send your inquiry to us by fax at (949) 270-7414 until we are certain that the e-mail issues have been resolved. Please include your e-mail address on any fax inquiry.

In other news, the FDN network will shortly be adding between 5 and 10 additional attorneys in Southern California, and at least five in Illinois to assist borrowers from Chicago northwest to the Rockford area. We will also shortly be adding attorneys in Northern California as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 25, 2010

As those of you who follow this website know, Mr. Barnes is this week closing his Nevada office and moving it to California. We have already been deluged with new inquiries from California in view of this and the recent Huffington Post article, and we are expanding our attorney base there in order to help foreclosure victims throughout California.

A foreclosure sale was stopped by Court Order in Michigan on Complaint and papers prepared by Jeff Barnes, Esq. A show cause hearing is being scheduled to request that the temporary injunction be made preliminary throughout the duration of the borrower’s challenge to the foreclosure.

FDN has added local counsel number 28 with the addition of Michael Forbes, Esq. in southeastern Pennsylvania. Mr. Forbes has significant litigation experience defending foreclosures and is familiar with the foreclosure “mills” who sue in Pennsylvania.

We have also recently received an inquiry from an attorney in Virginia requesting to join our network.

Further and this week, we have had numerous new inquiries from Arizona, and are expanding our network to cover not only Maricopa and Pima counties, but other counties as well.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com