Jeff Barnes is a tough litigator who is out to win. In this case he managed to stop the eviction until the claims in his Federal suit were decided. This is how it SHOULD happen. But it doesn’t because most people lack the financial resources to get Barnes or another lawyer to do all the work and all the preparation required to get traction in a hostile judicial climate.
Here is what Jeff Posted:
Posted on December 5, 2015
December 5, 2015
In what we consider to be a major victory in a case of first impression in Colorado, an Archuleta County Judge stopped an eviction trial from proceeding after motions, briefing, and lengthy argument yesterday. Jeff Barnes, Esq. represents the homeowners, who are battling both US Bank and Citimortgage in connection with the threatened eviction.
Colorado law permits the assertion of defenses in an eviction action, but the case law does not limit or specify what defenses can be raised. The homeowners raised defenses related to a post-sale change of ownership in the loan (and thus a “person entitled to enforce” [PETE] issue), and other defenses including a defense based on a TILA rescission effected pursuant to 15 USC sec. 1635 and 1640. Neither the “lender” nor the servicer undertook any action within the 20 day period permitted by the Federal statute to challenge the homeowners’ exercise of their right to rescind, electing instead to wait until yesterday’s hearing to attempt to argue a “defense” to the rescission.
The Court ultimately ruled that it is without jurisdiction to entertain the defenses raised, and issued an abatement order staying the eviction case until the District Court decides the issues related to the defenses. This means that no eviction trial can be scheduled until the District Court litigation on the defenses (which is an entirely new action to be filed) has run its course, which would include any appeals.
Further, if the homeowners prevail on their rescission claim, the entire eviction action could conceivably disappear forever. The law on rescission, after the issuance of the Supreme Court’s Jesinoski decision in January of this year, is far from settled, and more issues have opened up in view of this decision which clarified, among other things, that a rescission is effective upon the mailing of the notice of rescission. The principles of the Jesinoski decision were recently affirmed in the Pataalo decision out of Oregon (which was brought to our attention by several of our dedicated followers), much to the chagrin and frustration of JPMorgan Chase (the foreclosing party in that case).
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
Filed under: foreclosure |