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FDN Attorneys Obtain Dismissal of 9th Case in New Jersey; Rhode Island Court Permits Homeowners to Attack MERS Assignment

foreclosuredefensenationwide.com | February 20, 2014

By Jeff Barnes, Esq.

For the 9th time, FDN attorneys in New Jersey have obtained a dismissal of a foreclosure action which was originally filed by foreclosure mill Zucker Goldberg and Ackerman, but with the case being later transferred to foreclosure mill Phelan Hallinan. The reason for this 9th dismissal was the same as the others which preceded it: the Plaintiff’s steadfast refusal to comply with discovery. Local New Jersey counsel Michael Jacobson, Esq. of the Cooper Levenson Firm represented the homeowners, assisted by consulting counsel Jeff Barnes, Esq.

The Zucker Firm has a long history of intentionally refusing to comply with discovery. In fact, in one case in Morris County where Mr. Barnes represented the homeowners, the Judge, during a Case Management Conference, specifically directed the attorney for Zucker to comply with the homeowner’s discovery by producing documents responsive to Mr. Barnes’ Request for Production and producing a representative for deposition. The Zucker attorney stated to the Judge “We’re not going to do that. We object to the discovery, so we are not going to produce it and are not going to produce a representative for deposition.” The Judge stated that she would dismiss the case if the discovery and representative were not produced. Zucker did not produce the discovery or a representative, and the case was dismissed.

Separately, on February 3, 2014, the Rhode Island Supreme Court has issued its opinion in the matter of Chhun v. MERS, No. 2012-298-Appeal, which reversed the Superior Court’s granting of a Motion to Dismiss which had been filed by MERS, Deutsche Bank, Aurora Loan Services LLC, and Domestic Bank. The homeowners had sued for declaratory relief, quiet title, and punitive damages, alleging that the MERS Assignment had no effect as it was signed by someone who was an employee of Aurora (and not MERS), and that MERS did not order the assignment to Aurora. The Court found that these allegations satisfied the requisite pleading standard and reversed the Superior Court’s ruling.

The Superior Court had taken the position that the homeowners did not have standing to challenge the assignment. The homeowners challenged Aurora’s authority to foreclose and asserted that the mortgage was not validly assigned.The Supreme Court found that these allegations stated a claim for which relief could be granted.

This decision is further evidence of the evolution of the recent body of case law nationally which is consistently permitting homeowners to challenge assignments. The decisions in Horace (Alabama), Hendricks (Michigan), Williams (Hawaii), Johnson, Naranjo, and Glaski (California), Erobobo (New York), Saldivar (Texas), and the recent Cosajay decision from the Rhode Island Federal court demonstrate where the law is heading on this issue. Further, the Drouin case from the New Hampshire Federal court distinguishes “attacks” on assignments from no assignment having occurred as a matter of fact in situations where the original lender was out of business long before the assignment.

We thank one of our dedicated followers for bringing the Chhun decision to our attention today.

Finally, oral argument was conducted in the Oregon Court of Appeals on Wednesday, February 5, 2014 per our prior post. The Court took the matter under submission and will issue an opinion in the coming months.

 

Back to February 2014 Archive

CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

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