TENN FED CT ALLOWS CLAIM AGAINST BOA ON OWNERSHIP OF LOAN

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TENNESSEE FEDERAL COURT DENIES BANK OF AMERICA’S MOTION TO DISMISS
DECLARATORY JUDGMENT ACTION CHALLENGING ALLEGED OWNERSHIP OF LOAN
Today, August 23, 2011, 6 hours ago | Jeff Barnes
August 23, 2011

A Tennessee Federal court has issued an Order and Memorandum denying a
Motion to Dismiss filed by Bank of America which attacked the
borrower’s action, brought under Tennessee’s version of the Uniform
Declaratory Judgments Act, challenging B of A’s claimed “ownership” of
a mortgage loan. The loan was originated by America’s Wholesale
Lender, a claimed “dba” of Countrywide. B of A later claimed to have
succeeded to ownership of the loan, but thereafter made inconsistent
statements concerning the alleged ownership, although the transfer of
the loan was purportedly made from the originating lender to B of A
within 120 hours of closing.

The borrower had filed suit in state court. B of A removed the case to
Federal court.

B of A claimed that there was no “actual controversy” as Countrywide
was a subsidiary of B of A, and that Countrywide was “DBA” America’s
Wholesale Lender. The Court found that there was nothing in the papers
filed by B of A demonstrating that this was in fact the case; that
there was nothing in either the Note or the DOT which even mentioned
Countrywide; and the Court could thus not determine whether B of A in
fact had any interest in the loan.

Jeff Barnes, Esq. (admitted pro hac vice) and local Tennessee counsel
John Higgins, Esq. represent the borrower.

Jeff Barnes, Esq., http://www.ForeclosureDefenseNationwide.com

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35 Responses

  1. The latest on this case is it has was rescheduled for a bench trial on 12/18/2011. Latest on the docket is as follows which only goes up to 12/15/2011:

    Date Filed # Docket Text

    12/15/2011 Minute Entry for proceedings held before Magistrate Judge E. Clifton Knowles: Settlement Conference held on 12/15/2011. The parties were unable to reach an agreement. (hv) (Entered: 12/15/2011)

    12/09/2011 35 ORDER: The Motion 34 to Reschedule Settlement Conference(Docket No. 34) is DENIED. IT IS SO ORDERED. Signed by Magistrate Judge E. Clifton Knowles on 12/9/11. (af) (Entered: 12/09/2011)

    12/09/2011 34 MOTION to Continue Motion to Reschedule by Gary W. Chapman. (Higgins, John) (Entered: 12/09/2011)

    11/29/2011 33 ORDER: A settlement conference is set for 9:30 a.m. on Thursday, 12/15/11 in Courtroom 661 before Magistrate Judge E. Clifton Knowles. Signed by Magistrate Judge E. Clifton Knowles on 11/29/11. (rd) (Entered: 11/29/2011)

    11/09/2011 32 ORDER: A settlement conference set for 9:30 a.m. on 12/15/11 in Courtroom 661 before Magistrate Judge E. Clifton Knowles. Signed by Magistrate Judge E. Clifton Knowles on 11/9/11. (rd) (Entered: 11/09/2011)

    11/09/2011 31 ORDER: A bench trial is set for 9:00 a.m. on 12/18/12 in Courtroom 874 before Chief Judge Todd J. Campbell. The pretrial conference is set for 10:30 a.m. on 12/10/12. By 12/3/12, counsel shall submit a joint proposed pretrial order, witness and exhibit lists and any stipulations. Any motions in limine and motions objecting to expert testimony shall be filed by 11/26/12; responses thereto by 12/3/12. Signed by Chief Judge Todd J. Campbell on 11/9/11. (rd) (Entered: 11/09/2011)

    10/07/2011 30 Rule 26 Disclosure by Gary W. Chapman. (Higgins, John) Modified on 10/11/2011 (rd). (Entered: 10/07/2011)

    09/29/2011 29 ORDER: Deft’s 23 Motion to Reconsider is DENIED. Signed by Chief Judge Todd J. Campbell on 9/29/11. (rd) (Entered: 09/29/2011)

    09/26/2011 Note to filer re 28 : Pursuant to Administrative order No. 167, Section 8, electronically filed documents shall set forth the Filing Users name, address, telephone number and Board of Professional Responsibility registration number. The filers name should be typed in the space where the signature would otherwise appear preceded by the symbol s/ or inserted facsimile signature. THIS DOCUMENT SHALL BE RE-FILED. (rd) (Entered: 09/26/2011)

    09/22/2011 28 RESPONSE to 23 MOTION for Reconsideration re 22[RECAP] Order on Motion to Dismiss, filed by Gary W. Chapman. (Higgins, John) Modified on 9/26/2011 (rd). (Entered: 09/22/2011)

    09/15/2011 27 ORDER granting 26 Motion for Extension of Time to File Response/Reply re 23 MOTION for Reconsideration. Signed by Chief Judge Todd J. Campbell on 9/15/2011. (hb) (Entered: 09/15/2011)

    09/15/2011 26 MOTION for Extension of Time to File Response/Reply as to 23 MOTION for Reconsideration re 22[RECAP] Order on Motion to Dismiss, by Gary W. Chapman. (Higgins, John) (Entered: 09/15/2011)

    09/13/2011 25 NOTICE of Filing by Bank of America re 23 MOTION for Reconsideration re 22[RECAP] Order on Motion to Dismiss, (Attachments: # 1 Exhibit A – TN SOS Information regarding Assumed Name Filing for AWL)(Roberts, Donna) (Entered: 09/13/2011)

    08/31/2011 24 ORDER: Pending before the Court is Defendant Bank of America N.A.’s Motion to Reconsider 23 . The Plaintiff shall file a response to the Motion by 9/13/2011. Signed by Chief Judge Todd J. Campbell on 8/31/11. (dt) (Entered: 08/31/2011)

    08/25/2011 23 MOTION for Reconsideration re 22[RECAP] Order on Motion to Dismiss, by Bank of America. (Roberts, Donna) (Entered: 08/25/2011)

  2. Scenario…Homecomings Financial Network transfers a loan over to America’s Wholesale Lender and the promissory note states that “America’s Wholesale Lender is a corporation, organized and existing under the laws of New York,”

    If America’s Wholesale Lender was never a corporation under Countrywide’s address like the NY Secretary of State website indicates, then how could America’s Wholesale Lender, Inc. issue a check in their fictitious name to Homecomings Financial Network for the payoff.

    I would assume there are strict banking rules for any kind of business or corporation to issue a check in a false business or corporate name. I would personally like to see an America’s Wholesale Lender, Inc. check signed by someone.

  3. [...] TENN FED CT ALLOWS CLAIM AGAINST BOA ON OWNERSHIP OF LOAN MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE TENNESSEE FEDERAL COURT DENIES BANK OF AMERICA’S MOTION TO DISMISS DECLARATORY JUDGMENT ACTION CHALLENGING ALLEGED OWNERSHIP OF LOAN Today, August 23, 2011, 6 hours ago | Jeff Barnes August 23, 2011 A Tennessee Federal court has issued an Order and Memorandum denying a [...] [...]

  4. @carie – i don’t understand that and have honestly never understood the claims that refi’s were unsecured. do you have a link where i can read further on it?

  5. It’s all related to the “Oh, what a tangled web we weave…etc.”, because they ALL started with THIS:

    “…Subprime refinance was unsecured — a false and fraudulent mortgage — and nothing more than debt collection on a fraudulent transfer of collection rights to a false default debt. Everyone (in subprime refinance) was in (false) default before they even refinanced.
    The banks (as debt buyers) accomplished this by falsely placing borrower in current default (and never telling them) — and then the servicer purchases the collection rights from either Freddie or Fannie. Then the servicer “reinstates” the false default debt with a fraudulent refinance. And, if there is a subsequent refinance, that is just another transfer of collection rights. Servicer reports original F/F mortgage as “paid” — but it is “Paid-OUT” — by servicer purchase — and not “Paid-OFF” by the borrower as it should have been by the (fraudulent) subprime refinance. . Thus, borrower remains in default on F/F loan – despite a subprime refinance — and borrower can never refinance with an F/F again — They are doomed if they miss even one payment on the false collection rights — and will never recover because always held in default — on both the F/F loan and the collection rights. BUT BORROWERS should not be paying on fraud!!!! They have a right withhold payments on fraudulent debt.
    All fraudulent, all in violation of consumer protection laws — and, because the “creditor” of collection right never validates the “debt” — by disclosing the actual creditor to the false default debt — in violation of FDCPA and May 2009 TILA Amendment. Meaning borrowers should not be paying anything — because of fraud and violation of federal statutes.”

  6. @ E. Tolle

    You said it so well. This is precisely what Charles and I have already attempted to convey and which this judge also saw.

    When that D/B/A relationship was not present on the loan documents, and NO relationship to CountryWide was shown regarding the lender, the AWL Corporation loans were NEVER and can NEVER be PERFECTED.

    These ‘bastard’ loans (Neil calls them ‘wild mortgages’) were originated for MANY years. I know of them being originated as early as 2002 and as late as 2007.

    CW already had knowledge back in 2005 that they had foreclosure problems with these loans. On appeal, they found they could NOT foreclose in the Pagano and in the Silberstein cases when AWL Corporation TRIED to foreclose. Those two cases were both decided in 2005 as I recollect.

    In April 2011, BNY-Mellon tried to foreclose on an AWL Corp loan in NY state in the Alderazi case. In that one, MERS had no way to do the transfers on behalf of either AWL Corp or CW. I do not know if 2010 attempt was by BofA, but they had also failed in April of 2010.

    With the KNOWLEDGE in 2005 that they could not foreclose in the name of their bastard child, why did they keep writing the loans without showing the D/B/A? Obviously they KNEW. This really fits with the intent to use a non-entity and just gamble that most would not catch on to the problem they have.

  7. @ tnharry,

    There’s much going on here that’s not readily apparent on the surface. As was previously mentioned, America’s Wholesale Lender (AWL) was operating as a legal entity, a corporation organized under the laws of New York or Delaware (they couldn’t decide). If the facts could back that up, there would be no controversy. Remember that there was no mention of Countrywide (CW) on any of the originating documents.

    Later on when CW came to its senses, or someone in legal took a look and realized the error of their ways, they started originating and otherwise operating retroactively as CW d/b/a AWL, hoping that no one would see the shortcomings/illegalities of their previous incarnation. But a Sunday morning epiphany won’t clear up the sins of a rowdy Saturday night, at least not without some atonement.

    This is the genesis of the “legal” entity known as AWL, the one forever attached to CW as a d/b/a. To claim that AWL by and of itself is a legal entity is a pure fiction. No matter how one tries, it’s impossible to conclude that AWL was capable of entering into contractual agreements when in fact it wasn’t a legal entity, especially when considering that AWL was hiding its affiliation with its corporate parent CW. Corporations may be people (Romney 2011) but in this case a DNA sample would prove otherwise. AWL is a bastard child.

    If in fact the courtroom was a level playing field, all of the above would be moot, considering that the court lacked jurisdiction because AWL never had the legal capacity to sue. There would be no standing whatsoever. End of story. Bad guys lose.

  8. @Charles – that quote was from the Order, not BoA’s pleadings. The Green Hills inclusion was a red herring. They weren’t on the note or deed of trust. Plaintiff claimed they were lender, but then attached docs to his own complaint clearly showing that they were never the lender. They weren’t on anything. They were maybe an originator. Read the complaint. It desperately needs to be amended, as it is very limited in its claims. They make much ado over Green Hills, feign ignorance over BoA involvement, and skip directly to Dec Judgment. No mention of MERS, no issues regarding multiple parties trying to collect. On that point, BoA’s reply brief made a good point I thought. Plaintiffs came out swinging with a wild dissertation about MERS in their response to the motion to dismiss, but they hadn’t even put the MERS question on the table in the complaint.

  9. tnharry,

    The wording of the memorandum is not all there is to any decision. If you think anything is “clear” you’ve not been following this stuff as you should.

    Your reasoning re “circle” of who is whom is flawed and short-sighted based on the [limited] ruling provided which was all that was necessary. To say there would be “no controversy” is also flawed because the argument(s) presented dealt with the controversy at issue, nothing more.

    If you think BofA counsel dropped the ball on this one, think again…and you’re attempt at arguing other cases for counsel in the instant case is further misplaced.

    You go from partially quoting BofA’s assertion that the original lender was CW d/b/a AWL (a fact which is in controversy contrary to their assertions) to CW being a subsiderary of BofA completely missing that it was actually alleged that Green Hills Financial was the original “lender”…this is a typical bankster counsel trick. There were MERS issues presented among others a whole host of others and none of the supporting documents were readily avaialble or reviewed by any of us yet.

    The ruling still stands even if so limited.

  10. another interesting fact – the original trustee on the DOT is Robert Wilson of Wilson & Associates foreclosure mill fame

  11. I disagree Charles. From the wording of the memorandum it seems clear that there would have been a different outcome if they could show that AWL was a d/b/a of Cwide. The court had already bought in that Cwide = BoA, so if they could show that AWL=Cwide, then they circle would have been complete and no controversey.

    “…Defendant Bank of America asserts that the original lender on the Note and Deed of Trust was Countrywide Home Loans d/b/a America’s Wholesale Lender. Defendant also asserts that Countrywide Home Loans is now a subsidiary of Bank of America, a fact noted by another district court in Yaldu v. Bank of America Corp., 700 F.Supp.2d 832, 836 (E.D. Mich. 2010). Thus,
    Defendant claims, there is no dispute as to how Bank of America owns the Note and, therefore, there is no case or controversy to be decided in this action.
    Yet, the Note and Deed of Trust filed with Defendant’s Motion state that the Lender on this mortgage is America’s Wholesale Lender. Docket No. 7-1. There is nothing in the Complaint or the subject documents to evidence that Countrywide Home Loans does business as America’s Wholesale Lender or is a party to the Note or the Deed of Trust. The Court cannot assume these facts based upon the assertion of counsel in a brief….”

  12. How could they claim CW d/b/a AWL is the same entity when listed in the DOT as AWL a CORPORATION organized and existing under the laws of New York? It can’t…and no doubt why it was conspiculously absent in the pleadings.

    Further, it was not only related to the d/b/a but more importantly a lack of evidence of CW beign a party to the note and deed of trust.. Read the motions, response and reply…you find there’s far more to it than that.

  13. from reading the memorandum opinion it appears that the outcome may have been different had the Bank merely included some documentation that America’s Wholesale was in fact a d/b/a of Countrywide. That was the only real aspect that the court hung the “non-dismissal” on.

    On a side note, there’s a very good chance this is the same Gary Chapman that used to be married to singer Amy Grant.

  14. Well, apparently the link to Pacer does not work.

    You should go here: https://ecf.tnmd.uscourts.gov/cgi-bin/login.pl

    Then login with your Pacer info.

    Then click Query and enter Case Number: 3:11-cv-00504

    This is good stuff! Check it out.

  15. Ooops!

    Here is the correct Pacer link: https://ecf.tnmd.uscourts.gov/cgi-bin/iquery.pl?94695376332377-L_608_0-1

  16. Charles had the wrong case number listed below,maybe a typo.

    The proper case number is: 3:11-cv-00504

    For those with Pacer, simply go HERE: https://ecf.tnmd.uscourts.gov/cgi-bin/HistDocQry.pl?610563668149108-L_81_0-1

    You can pull all documents pretaining to the case.

    Charles…..thanks for your work in getting this info out. Also, a BIG thanks to John Higgins and Jeff Barnes for the info, and most importantly, pleading a good case!

    Hope this one sticks all the way thru……it is ordered that the parties try to work out a deal at this point! :)

  17. Same will be true for all of the ‘fictitous names’ like Ameircas Servicing Company.

    Uniform Declaratory Judgments Act

    A declaratory judgment is legally binding, but it does not order any action by a party. In this way the declaratory judgment is like an action to quiet title. A judgment merely declaring a right

    1934 Congress enacted the Declaratory Judgment Act (28 U.S.C.A. § 2201 et seq

    An action or proceeding shall not be open to objection on the ground that a declaratory judgment or decree is prayed for.

    At the state level, the National Conference of Commissioners on Uniform State Laws passed the Uniform Declaratory Judgments Act (12 U.L.A. 109) in 1922.

    “Loan Trusts” BONDS ‘Credit’ payments debits cash to owners.

    New York Constitution and Legislation:
    http : // www . lawsource . com / also / usa . cgi ? go = ny

    Uniform Management of Institutional Funds Act – N.J. Stat. § 15:18-15 et seq.

    Uniform Electronic Transactions Act. – N.J. Stat. § 2A: 16-51 et seq.

    In New Jersey, Uniform Commercial Code – N.J. Stat. § 12A:1-101 et seq. (tit. 12A, chs. 1–10)

    Uniform Fiduciaries Act – N.J. Stat. § 3B:14-52 et seq.

    Uniform Partnership Act – N.J. Stat. § 42:1A-1 et seq.

    Uniform Limited Partnership Act N.J. Stat. § 42:2A-1 et seq.

    Uniform Fraudulent Transfer Act N.J. Stat. § 25:2-20 et seq.

    Uniform Declaratory Judgments Act – N.J. Stat. § 2A:16-51 et seq.

    Uniform Securities Act – N.J. Stat. § 49:3-47 et seq.

    Uniform TOD Security Registration Act -N.J. Stat. § 3B:30-1 et seq.

    Uniform Principal and Income Act – N.J. Stat. §§ 3B:19A-1, 3B-19B-1 et seq.

    Uniform Act on Intrastate Fresh Pursuit – N.J. Stat. § 2A:156-1 et seq

    Uniform Act on Fresh Pursuit – N.J. Stat. § 2A:155-1 et seq.

    Uniform Enforcement of Foreign Judgments Act – N.J. Stat. § 12A:12-1 et seq.

    stopped.

  18. My loan is an American Wholesale Lender loan….This is EXACTLY what is wrong with my “so called” loan!!

  19. I just received my “Managing REO” newsletter … headline …

    Deutsche Bank Loses Foreclosure on a New Jersey Property

    After winning a summary judgment and obtaining possession of a two-family house in Plainfield during a sheriff’s sale in May 2010, the court ruled that the German bank did not have possession of the note for the loan when it filed the original foreclosure complaint three years ago.

    “The assignment was not perfected until after the filing of the complaint, and plaintiff presented no evidence of having possessed the underlying note prior to filing the complaint,” the appellate division said in its ruling. “If plaintiff did not have the note when it filed the original complaint, it lacked standing to do so, and it could not obtain standing by filing an amended complaint. Given that Deutsche Bank has not demonstrated standing, we cannot decide at this time whether it was a holder in due course of the mortgage.”

  20. I really don’t like Scribd so I posted them on my own site instead…easier.

    See: http://www.bayliving.com and click on the AWL link in the middle and click on the Pleadings link when you get there. I downloaded a few of the papers…

  21. Charles ,

    If you could put the docs up on SCRIBD that would be great ..

  22. I found it. Case number 3:11-cv-0054, U.S. District Court Middle District of Tennessee (Nashiville) Chapman v. Bank of America et al, demand $2.4 million. Judge Todd J. Campbell Memorandum 8/23/2011…will download using FireFox and recapthelaw so the rest of you using that system won’t have to pay. There’s also an order related to the Memorandum requiring the parties to participate in ADR. Email me and I’ll send copies if you don’t want to go find them yourself.

  23. Yeah, I’m trying to find the State Case too but not sure what County or anything…so far, drawing a blank…thought that might lead to the Federal Case too by finding the client name…

  24. There’s a number of us with these cases and need some more direct persuasive authority to work with.

    These large firm bankster attorneys claim to represent anyone and everyone even though you are acually suing someone else. If you’re suing America’s Wholesale Lender (a CORPORATION organized and existing under the laws of New York)…there was no such company at the time; and these attorney come arrogantly prancing in, claiming AWL was merely a d/b/a of C.W. now BofA and the damn judges keep letting them them get away with it I admit, mostly due to the lack of adequate argument to the contrary.

    It will be interesting to see how this case went in that regard.

  25. The Order and Memorandum can be found at http://dockets.justia.com/docket/tennessee/tnmdce/3:2011cv00504/50649/

    No need to incur charges from PACER.

  26. It would be very useful to see the documents from the initial state court proceeding as well, before it was removed to Federal Court.

  27. Charles,

    More than likely, they are getting slammed! I did the same thing you did. Higgins is probably wondering why his old firm gave out his cell phone number! :)

  28. I’m trying to find the case number and will download pleadings and papers from Pacer once I get it. Sent emails to Barnes and left a message on Higgins’ cell phone…so far, no response. Will post when I find anything but will wait as there are too many cases to review in (assuming) Middle Tennessee Federal Court against BofA…too expensive and time consuming otherwise.

  29. Background on “America’s Wholesale Lender” loans:

    These loans were written showing that the “LENDER is America’s Wholesale Lender a CORPORATION under the laws of the state of New York……”. There is absolutely NO reference to CountryWide’s D/B/A in the loan or the note in thousands of these loans which were originated between at least 2002 and 2007. CountryWide was the original SERVICER for most if not all of these mortgages. The document was to be mailed to a CW address after it was recorded per the box at the top of the first page of the DOT. THAT location is NOT part of the actual Deed of Trust content, it is ‘above the line’.

    A DIFFERENT group finally formed a corporation named “America’s Wholesale Lender” as an “INC” in the state of New York but on 12-16-2008. That is AFTER the date of all these mortgages.

    A FEW of the mortgages DO show the CountryWide D/B/A on either the Note or the Deed. THOSE are NOT then involved in this ruling.

    For more prior background, there was a prior case in CT(?) in 2005. One of the prior cases was Silberstein v AWL while the other case is Pagano. A third case was ruled on in TX. All cases involved AWL trying to foreclose in it’s own name and all were won by the borrowers on appeal. Those cases were not exact ‘fits’ to use as ammunition against the tactic that CountryWide and now BofA have TRIED to use of the claimed D/B/A that was not on the actual mortgage documents.

    A more telling NY case involving BofA, CountryWide and BNY-Mellon is the Alderazi case. That case has now been heard twice in April of 2010 and April 2011. The courts in NY have held that there is no evidence of anyone that can act for the original entities in claiming that mortgage was transferred.

  30. NOT A “LOAN”—NOT A “MORTGAGE”—TELL THE WHOLE TRUTH—

    “…What we need to focus on is that borrower’s subprime refinance was unsecured — a false and fraudulent mortgage — and nothing more than debt collection on a fraudulent transfer of collection rights to a false default debt. Everyone (in subprime refinance) was in (false) default before they even refinanced.

    The banks (as debt buyers) accomplished this by falsely placing borrower in current default (and never telling them) — and then the servicer purchases the collection rights from either Freddie or Fannie. Then the servicer “reinstates” the false default debt with a fraudulent refinance. And, if there is a subsequent refinance, that is just another transfer of collection rights. Servicer reports original F/F mortgage as “paid” — but it is “Paid-OUT” — by servicer purchase — and not “Paid-OFF” by the borrower as it should have been by the (fraudulent) subprime refinance. . Thus, borrower remains in default on F/F loan – despite a subprime refinance — and borrower can never refinance with an F/F again — They are doomed if they miss even one payment on the false collection rights — and will never recover because always held in default — on both the F/F loan and the collection rights. BUT BORROWERS should not be paying on fraud!!!! They have a right withhold payments on fraudulent debt.

    All fraudulent, all in violation of consumer protection laws — and, because the “creditor” of collection right never validates the “debt” — by disclosing the actual creditor to the false default debt — in violation of FDCPA and May 2009 TILA Amendment. Meaning borrowers should not be paying anything — because of fraud and violation of federal statutes.”

  31. I need a case number so I can pull pleadings off PACER system.
    Ava Stamper
    Legal Aid of East Tennessee

    Thank you!!

  32. On what grounds was the case removed to Federal court if the plaintiff brought it under a state claim? Did plaintiff ask for it to be remanded to state court? Any more details?

  33. Is it not funny how B of A’s attorneys always cite NO CONTROVERSY!

    **NOT**

    There is PLENTY of CONTROVERSY!

    Yes, case information please, Neil.

  34. Case? Any other info?

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