August 20, 2010

MERS is in the spotlight again in view of the recent article in Yes! magazine and the Huffington Post. As those of you who follow the case law and this website know, the overwhelming majority of courts throughout the United States have seen through MERS’ doublespeak in mortgages and Deeds of Trust and have held it to its self-declared status of a nominee only with no ownership interest in the notes and no authority to transfer either the mortgages or notes as it is not and was never a “beneficiary”, especially in view of the admissions of MERS’ own attorneys in the Landmark (Kansas) decision and the MERS contract language where it agrees not to assert any rights to either the loans or properties mortgaged thereby.

Unfortunately, however, some courts still cling hopelessly to an “agency” theory: that the borrower appointed MERS as its agent and that “the debt follows the mortgage”. If these courts really read the law, they would see that they have it backwards and that the “agency” theory cannot make MERS something it is not. The Vermont decision surgically dissected the MERS anomaly and set the record straight.

The note is the obligation. The mortgage or Deed of Trust secures repayment of the note, and you cannot sue solely on a mortgage instrument. It is a collateral security instrument which has no enforcement power absent a concomitant debt (the Note). As such, in order to transfer the instrument securing repayment of the obligation, you need to own the obligation. This law is so clear on this point that it is a wonder that some courts have gone out of their way to either ignore it or pervert it.

Thankfully, the trend continues to be that MERS is nothing more than an entity to electronically track mortgages and that it is not a “beneficiary”, “agent”, “mortgagee”, etc. We hope that courts who will be addressing the MERS issues will follow the law and hold MERS to what itself chose to be: “solely a nominee”.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FDN’s Jeff Barnes, Esq. has been quoted in the Huffington Post which republished an article from Yes! magazine concerning foreclosure defense and the effect of a recent California Bankruptcy Court ruling on foreclosure cases in California, the quote having been part of an article previously published by Mr. Barnes on this website. The article was brought to our attention today by several of our dedicated readers.

Separately, Mr. Barnes’ Las Vegas, Nevada office will be closing permanently on Wednesday, August 25, 2010 to be replaced by his new California office located at 2901 West Coast Highway, Suites 360 and 361 (mailing address: Suite 350), Newport Beach, California which will be up and running on Monday, August 30, 2010 after Mr. Barnes and his family relocate to California. Mr. Barnes will continue to maintain the Boca Raton, Florida office. E-mail addresses will remain the same. The new telephone and fax numbers for the California office will be provided by e-mail upon request.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 19, 2010

During the course of nine separate court hearings in southwest Florida today, a Judge dismissed two foreclosure cases on motion of Jeff Barnes, Esq. for failure of the Plaintiff to link up assignments of the loan from the original lender to the Plaintiff in the Plaintiff’s pleadings, notwithstanding that post-filing assignments had been either filed or served in partial response to discovery. These rulings reflect a change from prior court rulings, where judges had permitted non-original lender Plaintiffs to generally plead that they owned and held the note and mortgage but had not explained how they came into ownership thereof in the allegations of the Complaint.

The effect of these rulings is to now force foreclosing Plaintiffs to give notice to borrowers up front, in the Complaint, as to how the Plaintiff (allegedly) acquired its interest in the mortgage and note, which will have the practical effect of streamlining defensive pleadings and narrowing discovery, and will not allow foreclosing non-original lender Plaintiffs to obscure material chain-of-title issues and blindside borrowers on summary judgment motions where alleged proof of chain of title is introduced for the first time.

The Judge also, in separate hearings, ordered foreclosing Plaintiffs to provide substantive responses to Mr. Barnes’ discovery requests after the Plaintiffs filed blanket objections in one case and open-ended Motions for more time to respond to the discovery (that being a Motion which does not request any specific amount of additional time to respond) in 2 other cases. Blanket objections to all discovery requests and open-ended Motions for more time which the moving Plaintiff does not even set for hearing are a common practice of foreclosure mills which are used to delay or hamstring discovery. The really arrogant mills then file a Motion for Summary Judgment while simultaneously refusing to provide responses to borrower discovery, necessitating additional hearings to reschedule the summary judgment hearing, motions to compel discovery, etc.

Jeff Barnes, Esq., www/ForeclosureDefenseNationwide.com

August 11, 2010

Those of you who follow this website know that the Law Offices of David J. Stern, P.A., which was sued in a Federal Court class action for RICO violations recently and was announced to be the target of an Economic Crimes Division investigation by the Florida Attorney General yesterday, was previously found by a Pasco County, Florida Judge to have manufactured a fraudulent, backdated Assignment of Mortgage notarized by a notary whose commission and stamp were not even in existence until five months after the date of the notarized Assignment, and where the Court which had jurisdiction over that case dismissed it with prejudice and assessed the borrower’s attorney’s fees against Stern’s client. Well, all we have to say is “he gone and done it agin”.

In a case we are defending, Stern did the EXACT SAME THING: filed and recorded an Assignment of Mortgage “notarized” by a Notary whose commission did not even exist until several months after the date of the alleged Assignment, which was, as usual, signed by a Stern paralegal posing as a “Secretary” of MERS. We have filed a Motion on behalf of the homeowner seeking dismissal of the action with prejudice, sanctions, attorneys’ fees and costs, and referral of the matter to the Florida Attorney General, which is investigating the same type of conduct engaged in by Stern in other cases.

If Stern did it twice, he probably did it hundreds of times. That is why, again, we believe that the State of Florida or the Supreme Court of Florida or the Florida legislature, or a combination therof, should immediately appoint a Special Commission or Task Force or other body to review ALL foreclosure cases filed by Stern since the day his Firm first started doing so to examine each and every case for misconduct, false documentation, or other legal infirmities, and to cause each such case to be re-opened for full defense by the borrower/homeowner. It is only in this way that true justice will be done as to the man whose 130 foot yacht is named “Your House is My House” in Spanish.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 10, 2010

The Economic Crimes Division of the office of the Florida Attorney General has announced today the launching of a criminal investigation of the Law Offices of David J. Stern, P.A., the Law Offices of Marshall Watson, P.A., and Shapiro & Fishman, P.A. regarding improper documentation created and filed in Florida foreclosure cases by these Firms to speed up the foreclosure process, oftentimes without knowledge of the homeowner. Interested readers may follow up on www.myfloridalegal.com/picture.html.

As those of you who follow this website already know, the Law Offices of David J. Stern has already been found by a Pasco County, Florida Court to have manuafactured false documentation and perpetrated a fraud upon the court in a written opinion in a foreclosure case where the borrower’s attorneys’ fees were assessed against Stern’s client. Our experience with the Stern and Shapiro & Fishman Firms has also demonstrated that these Firms consistently violate due process and the ethics rules in their relentless pursuit of pushing foreclosures through the courts with arrogance and contempt not only for the law but for opposing counsel as well, with an attitude of “how dare you defend these cases!”

What should happen, and what FDN attorneys and associates have already discussed more than once, is that the Florida courts should appoint a special commission to examine each and every foreclosure action filed by these Firms (and Florida Default Law Group as well, who we also know, from personal experience and reported court proceedings, also routinely engages in misconduct in “prosecuting” foreclosure cases) from their first foreclosure filing in their history, and for any case which appears to have any indication of improper procedure, that each such case be reopened and the borrower be permitted to defend it. We were recently retained on a case filed by the Stern Firm in 2003 which has indications of improper procedure and false allegations.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 9, 2010

An Arizona Superior Court Judge has issued an Order, on Motion of FDN’s Jeff Barnes, Esq. (admitted pro hac vice) and local counsel Richard Duffield, Esq. granting a preliminary injunction against a trustee’s sale. The Defendant bank had originally counterclaimed for judicial foreclosure, then attempted to dismiss that counterclaim after the borrower served a response to the counterclaim. The Court held that the attempted dismissal was improper and that a trustee’s sale cannot occur in the presence of a pending action for judicial foreclosure.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

August 9, 2010

We have received an overwhelming response as to our upcoming live seminar series. The seminars will be held in the Newport Office Center (where Mr. Barnes’ maintains his Newport Beach, California office), which is located at 2901 West Coast Highway, Newport Beach, California 92663. 

Mr. Barnes’ Newport Beach, California office will permanently replace the Las Vegas, Nevada office as of Friday, August 27, 2010. The Las Vegas office will be closing on Thursday, August 26, 2010.

The one-day live seminars will be held on Fridays and will consist of seven (7) hours of instruction from segments of Mr. Barnes’ 12-CLE hour course which has been previously approved by The Florida Bar. Each participant will receive a binder with power points, outlines, sample pleadings, motions, discovery, proposed court orders, and case law. Breakfast, lunch, snacks, and beverages will be served and are included in the seminar fee.

The present tentative dates for the first round of one-day live seminars are October 1, 2010; October 29, 2010; November 19, 2010; December 17, 2010; and January 7, 2011. Content and materials will be similar for each session, but may differ as to updates on court rulings, case law, and litigation techniques. There may also be certain segments from the 12-CLE hour series which are included in one specific session but not another. Course schedules for each specific seminar will be posted on this website as of the date that registration materials are made available.

Enrollment for each one-day seminar will be limited to twenty (20) participants. Seminars will begin promptly at 9:00 a.m. Pacific time and will conclude at approximately 5:00 p.m. The lunch hour from noon to 1:00 p.m. is reserved for Q&A.

Reservation forms will be made available by e-mail and fax beginning the week of September 6, 2010. A posting on this website will be made when a given seminar is closed at the point where enrollment for that specific seminar reaches 20 participants. There will be no on-site registration, and the seminars are limited to licensed attorneys only. Future seminars are being planned for paralegals and legal assistants employed by active law Firms.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

July 27, 2010

An Oakland Park (Ft. Lauderdale area) Florida attorney has sued MERS and the Law Offices of David J. Stern in a Federal RICO action in Florida. The lawsuit, filed yesterday, July 26, 2010 and comprising some 24 pages, is available by googling Law Offices of David J. Stern, and alleges violations of the Federal Racketeering and Corrupt Organizations Act.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

July 25, 2010

As those of you who follow this website are aware, the “nonjudicial” foreclosure states require the borrower to institute litigation in court to challenge a Trustee’s (foreclosure) sale and request both a temporary restraining order cancelling a pending sale, and for a preliminary injunction prohibiting any further attempts at foreclosure pending the duration of the borrower’s litigation challenging the foreclosure attempt. One of the elements which must be proven in order to obtain a preliminary injunction is something called “likelihood of success on the merits”. This element has consistently been mischaracterized by attorneys representing the “lenders”, servicers, and trustees of securitized mortgage loan trusts as the likelihood of success on the merits of the entire case.

Not so under Arizona law, which has explained the distinction in print. Arizona case law provides that a showing of irreparable harm if an injunction is not granted satisfies the “likelihood of success on the merits” prong of the claim for injunctive relief. As such, if a borrower can show that absent a court order to preclude the sale of the unique real property during the pendency of the borrower’s litigation that the unique property will be lost, the borrower has satisfied the “likelihood of success on the merits” prong of the claim for injunctive relief. The case stems from an insurance dispute where the particular type of insurance was unique and absent an injunction, the protections of the insurance would be lost.

What we consistently run into in the non-judicial states is this argument from counsel for the “lenders”, servicers, and trustee banks of securitized mortgage loan trusts that “the plaintiff (borrower) cannot satisfy the likelihood of success on the merits of their case because the plaintiff is in default and they are living in the house for free”. This argument is not only incorrect, but is a deliberate misrepresentation of the state of the law, at least in Arizona, as the “likelihood of success on the merits” claim relates SOLELY to the claim for injunctive relief, not the whole case, and has nothing to do with the claimed default.

Of course, the counter-argument takes its first steps at the legal right to declare a default (standing, chain of title, etc.), and follows, in securitization cases, that what the “lender”, servicer, or securitized trustee is really doing is trying to get paid twice, three times, four times, or more with the foreclosure. In fact, when the Arizona state court Judge in the case recently argued by Mr. Barnes was presented with the question of why a Wall Street securitized trustee Bank would buy a loan which is already in default (a/k/a a “toxic” loan) for purposes of placing it into a securitized mortgage loan trust, the Judge stated “because they knew they were going to get paid by insurance”. This is the question which was implicitly posed by Judge Schack in the Deutsche Bank v. Rolando Campbell case in New York back in 2008, which the Arizona Judge answered on the record last week.

BINGO!!! SHAZAM!!! This is what the Goldman Sachs litigation was all about, and why they settled so quickly with the SEC. As those of you who read the lawsuit know, Goldman pooled a series of loans which they knew would fail and took out multiple insurances on the risk of failure, and cashed in when the loans did fail. We call this “rigged gambling contracts”. For a paltry $0.55 billion, Goldman walked away with what must have been many times that. The settlement was nothing more than a “cost of doing business”.

It is up to us who defend foreclosure cases to keep bringing this to the attention of the judiciary. We are more than happy that at least one jurist has finally stated on the record what we have been arguing all along.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

July 20, 2010

In connection with the opening of the Newport Beach, California office last week, FDN’s Jeff Barnes, Esq. will shortly be scheduling a series of one-day seminars in foreclosure defense to take place once to twice a month at the Newport office. Seminars will be all day on Fridays from approximately 9 a.m. to 5 p.m. and will encompass 7 CLE segments from Mr. Barnes’ 12 hour foreclosure defense series which has previously been approved by The Florida Bar (CLE credits may be used by attorneys in other states. Check with your local state Bar for details).

Each seminar will be a live presentation and will be accompanied by a booklet with sample pleadings, motions, discovery, and settlement agreements, and will include a lunchtime “Q&A” session as well.

Dates and costs for the seminars will be made available by the second week of August, 2010. Please contact  [email protected] for these details. The seminars are slated to be held beginning in September, 2010. Although the seminars are designed primarily for attorneys in any jurisdiction, non-attorneys such as paralegals are welcome to register and attend, but will not receive CLE credit unless any particular licensing authority recognizes Florida Bar approved CLE for credit toward any other certification or license.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com