VICTORY IN ARIZONA: COURT STOPS SALE WHERE BORROWER PRESENTED EVIDENCE OF FRAUDULENT NOTICE OF TRUSTEE’S SALE

May 31, 2010

On Friday afternoon, May 28, 2010, an Arizona state court entered a restraining order cancelling a June 1, 2010 Trustee’s Sale of the borrower’s home which sale had been scheduled by Defendants MERS, Aurora Loan Servicing, and Quality Loan Service. The borrower presented evidence that the Notice of Trustee’s Sale prepared by Defendant QLS was fraudulent, as it claimed that the “current beneficiary” was Defendant Aurora when in fact the purported MERS assignment to Aurora did not occur until one month after the Notice of Trustee’s Sale was generated.

The borrower also cited to the Court the recent decision of the Arizona Bankruptcy Court in the matter of In Re Weisbrod, in which the Bankruptcy Court essentially stripped MERS of its purported authority and which case cites the In Re Sheridan decision from the Idaho Bankruptcy Court and others. The Weisbrod decision has been hailed as a rejection of the Blau and Cervantes pro-MERS decisions from 2009, and is in line and consistent with the findings of the Supreme Courts of Kansas, Nebraska, and Arkansas; the states courts of Vermont, Missouri, and South Carolina; and the Bankruptcy Courts of Idaho and Nevada which have dissected the purported expansion of MERS’ alleged “authority” in mortgages and Deeds of Trust where MERS on the one hand attempts to confine itself to “only a nominee” but later attempts to anoint itself with the power to assign mortgages and notes and institute or further foreclosures.

The great majority of the courts are finally starting to see though MERS’ facade and relegate MERS to what it really is: nothing more than an entity which tracks the transfer of mortgages.

The borrower is represented by Jeff Barnes, Esq., who prepared the litigation and memorandum of law, and local Arizona counsel Lynn Keeling, Esq. who obtained the restraining order.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

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VICTORY IN KEY WEST: JUDGE DISMISSES FORECLOSURE FILED BY FLORIDA DEFAULT LAW GROUP FOR FAILURE TO COMPLY WITH DISCOVERY AND COURT ORDERS

DISMISSED!

May 20, 2010

Today, a Key West, Florida Circuit Court Judge dismissed a foreclosure action filed by Florida Default Law Group (FDLG), which was representing Bank of New York as the alleged “Trustee” of a Bear Stearns securitized mortgage loan trust. The borrower, who was represented by FDN’s Jeff Barnes, Esq., had served discovery on FDLG in late February, 2009. FDLG filed one of its form “open ended” Motions for Extension of Time to respond to the discovery (that being with no date certain for the response). FDLG failed to respond to Mr. Barnes’ good-faith request as to how much time FDLG needed to respond to the borrower’s discovery. The first “response” from FDLG came over 13 months later when FDLG objected to practically everything which Mr. Barnes asked for.

FDLG also failed to comply with the Court’s Pretrial Order, and had a history in the case of violating court orders and actually paid sanctions on prior Motion filed by Mr. Barnes. The Court dismissed the case and conditioned any re-filing on full compliance with Mr. Barnes’ discovery and the Court’s Orders.

Jeff Barnes, Esq., www/ForeclosureDefenseNationwide.com

NEW YORK COURT DISMISSES FORECLOSURE WITH PREJUDICE ON ILLEGAL MERS ASSIGNMENT EXECUTED BY COUNSEL FOR THE FORECLOSING PLAINTIFF

May 12, 2010

New York Judge Arthur Schack has dismissed another foreclosure case, this time with prejudice, as a result of an illegal MERS assignment which was “executed” by an attorney in the office of counsel for the Plaintiff, finding that the alleged assignment violated the New York Rules of Professional Conduct as doing so was a conflict of interest.

The Plaintiff was US Bank, N.A. as Trustee for the SG Mortgage Securities Asset-Backed Certificates, Series 2006-FRE2. The original lender was Fremont Investment and Loan. The purported Assigment of Mortgage (which did not assign the Note at all) was executed by a New York attorney as “Assistant Secretary and Vice-President” of MERS. As this attorney, signing for the assignor, listed her business address as that of the law office of the Plaintiff’s counsel (Steven J. Baum P.C.), which represented the assignee US Bank as Trustee, the Court found this to be a conflict of interest in violation of 22 NYCRR sec. 1200.0 Rules of Professional Conduct. Judge Schack dismissed US Bank’s foreclosure action with prejudice and cancelled the Lis Pendens.

We know that there are literally hundreds (if not thousands) of these MERS assignments which have been executed by paralegals and others from the law offices of the Plaintiff’s foreclosure counsel as alleged “Vice Presidents” or “Assistant Secretarys” of MERS. This decision indicates that all such purported assignments are most likely illegal, void, and that any foreclosure action based on such an assignment should be dismissed with prejudice.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

RELATED STORY: Lasalle Bank N.A. v Smith 2010: NY Slip Judge Schack does it again! Slams BAUM Law Firm!

Neil Garfield- Steps to Securitization

Mr. Garfield is a GENIUS
CameronBaxterFilms09
March 26, 2010
A casual conversation about the mechanics of securitization with Neil Garfield MBA JD, Wall Street insider and former trial attorney. Neil is the editor of http://www.LivingLies.Wordpress.com, the leading internet resource on foreclosure defense. He explains how the major banks and Wall Street used securitization to bypass traditional regulatory guidelines, and why it is so difficult for judges, lawyers and borrowers to understand what happened. Neil has just released a 2-disk, 4-hour foreclosure defense DVD set – The Garfield Continuum: Seminar for Laymen. A version for attorneys follows shortly. The DVD and the accompanying Workbook can be purchased at http://www.LivingLies-store.com
Wells Fargo’s Attorney– “We are the HOLDER of THE NOTE!
Later the attorney stated “Excuse me, I MISSTATED…We are ONLY the SERVICER”
Mr. Garfield “At which point I gave the lawyer an elbow, and I said “That means WE DON’T HAVE A HOLDER OF THE NOTE in this court room.” 

Frivilous Pleading Letter (Florida) to Law Offices Of David J. Stern P.A.

I really enjoy MR. BARNES work!

 

July 23, 2008

William Jeff Barnes, Esq. 1515 North Federal Highway
Atrium Building, Suite 300
Member of Florida and Colorado Bars Boca Raton, Florida 33432
Certified Mediator (Florida, Minnesota)
Certified Arbitrator (Florida) telephone: (561) 864-1067
telefax: (702) 804-8137
Ruth Barnes: International/Multilingual
Certified Mediator (Florida, Minnesota) e-mail: wjbarnes@cox.net
Certified Arbitrator (Florida)

July 2, 2008

VIA FAX AND MAIL
(954) 233-8333
Maria M. Solomon, Esq.
Law Offices of David J. Stern, P.A.
801 South University Drive, Suite 500
Plantation, Florida 33324

Re: Wells Fargo Bank, N.A. v. Defendant (Key West, Florida): FORMAL STATUTORY

DEMAND TO DISMISS FORECLOSURE ACTION WITH PREJUDICE, CLEAR
TITLE TO REAL PROPERTY, REFUND MONIES PAID, AND FOR PAYMENT
OF ATTORNEYS’ FEES AND COSTS PURSUANT TO FLA.STAT. SEC. 57.105

Dear Ms. Solomon:
This letter is being provided to you, the Law Offices of David J. Stern, P.A., and your client Wells Fargo Bank, N.A. (Plaintiff in the Action identified herein) as formal notice, pursuant to the matters herein and Fla.Stat. sec. 57.105, of this Firm’s client Defendant demand that you immediately and forthwith dismiss, with prejudice, that certain civil action styled Wells Fargo Bank, N.A. v. Defendant et al., 16th Judicial Circuit Court Case No. 2007-CA-1120-K (Key West, Florida, hereafter referred to as the “Action”); to provide clear title to the real property the subject of the Action; for refund of all monies paid by Defendant incident to the alleged “loan” the subject of the Action; and for payment of attorneys’ fees and costs which are awardable under various Federal and state statutes violated by your filing of the Action. This letter is also being sent as formal notice of Defendant’s Motion for Sanctions (copy attached hereto) which will be filed and set for hearing unless, pursuant to Fla.Stat. sec. 57.105(4), within twenty-one (21) days of today, Defendant’s demands as set forth herein are not complied with in writing confirmed by fax receipt, by this Firm, of the July 2, 2008 57.105 demand and notice to Maria Solomon, Esq. re: Wells Fargo Bank, N.A. v. Defendant et al., page 2 of 3

necessary documents to legally effect the demands made herein. The facts supporting this demand and the attached Motion are as follows, which are admissions by you, as an agent of the Law Offices of David J. Stern, P.A., in the Complaint which you filed:

(a) On or about August 22, 2007, you, as an agent and attorney of the Law Offices of David J. Stern, P.A., caused a civil action for foreclosure and to “enforce loan documents” to be filed in the 16th Judicial Circuit in and for Monroe County, Florida, which has been assigned case number 2007-CA-1120-K;

(b) In paragraph “5.” of Count I of the Complaint, you affirmatively represent to the Court that “The Plaintiff owns and holds the Note and Mortgage”;

(c) In paragraph “4″ of Count I, you affirmatively represent to the Court that the mortgage was “subsequently” assigned to the Plaintiff “by virtue of an assignment to be recorded” (that being some time in the future);

(d) In paragraph “20″ of Count II, you affirmatively represent to the Court that “The Plaintiff is not presently in possession of the Note and Mortgage” and “the Plaintiff cannot reasonably obtain possession of the Note and Mortgage because THEIR whereabouts cannot be determined (original emphasis):

(e) In paragraph “22″ of Count II, you affirmatively represent to the Court that “The Plaintiff will agree to the entry of a Final Judgment of Foreclosure wherein it will be required to indemnify and hold harmless the Defendant(s) [sic] Defendant, from any loss they [sic] may occur by reason of a claim by another person to enforce the lost Note and Mortgage.”;

(f) The Action thus inconsistently but affirmatively alleges, in Count I, that “Plaintiff owns and holds the Note and Mortgage” when in fact the admissions in Count II demonstrate, by the allegations of paragraphs “20″ and “22″ of the Complaint, that the Plaintiff DOES NOT and CANNOT legally establish possession or ownership of the Note or the Mortgage and that same is/are in the possession of an unknown party or parties;

(g) A copy of the Note is not even attached to the Complaint (only an alleged “ledger of loan”);

(h) By virtue of the admissions of the Plaintiff in paragraphs “20″, “21″, and “22″ of the Complaint, the Plaintiff has actual knowledge that it never, at any time material, had possession of either the mortgage or the note as same were sold, assigned, or transferred as part of the single-transaction securitization process which resulted in the subject mortgage and/or note being sold as

July 2, 2008 57.105 demand and notice to Maria Solomon, Esq. re: Wells Fargo Bank, N.A. v. Defendant et al., page 3 of 3

parceled obligations and becoming part of one or more tranches within a special investment vehicle;

(i) that the Plaintiff cannot establish that the subject note or mortgage is owned or controlled by the Plaintiff “indenture trustee” for unnamed holders of a series of asset-backed bonds (a copy of which are not even attached to the Complaint);

(j) As a direct and proximate result of the transaction referred to in paragraph “h” above, the Plaintiff does not and cannot establish legal standing to even institute a foreclosure action;

(k) As such, the allegation by the Plaintiff in paragraph “5″ of the Complaint constitutes matters which are completely devoid of factual or legal support and are thus “frivilous” within the meaning of Fla.Stat. sec. 57.105;

(l) As the primary and threshold issue of legal standing to institute the Action cannot be satisfied (which was known to you, the Law Offices of David J. Stern, P.A., and the Plaintiff at the time that the Action was instituted), the Action is a patently frivilous claim within the meaning of Fla.Stat. sec 57.105 and the filing and prosecution thereof constitutes a fraud upon the Court.

Your client and your Firm are thus charged with actual notice of the filing of an frivilous claim, as you, your client, and the Law Offices of David J. Stern, P.A. knew or should have known that the Action was both not supported by the material (and record) facts necessary to establish the claim for foreclosure and would not (and could not) be supported by the application of then-existing law to the material (and record) facts.

As such, this Firm has been directed to file and set for hearing, after the expiration of twenty-one (21) days from today (that being Thursday, July 24, 2008), the attached Motion for Sanctions and to seek attorneys’ fees from both your client and your Firm if the demands set forth herein for immediate dismissal of the Action with Prejudice, providing of clear title to the property the subject of the action, refund of all monies paid by Defendant in connection with the original “loan” the subject of the Action, and payment of all attorneys’ fees and costs associated with this demand are not complied with in writing by the close of business (5:00 p.m.) Wednesday, July 23, 2008.

Sincerely,

Jeff Barnes, Esq.

WJB/bhs
attachment (enclosed with mailed original)
copy to: Defendant (w/attachment)

Source: foreclosuredefensenationwide.com