Tennessee Foreclosure Stopped- Bank of New York Mellon Motion to Dismiss Denied

Tennessee Foreclosure Stopped- Bank of New York Mellon Motion to Dismiss Denied
October 22, 2015 John Frank Higgins

A non-Judicial Foreclosure in Tennessee has been Stopped. The Bank of New York Mellon’s motion to dismiss the lawsuit to stop the foreclosure was denied. The Tennessee Court entered an Injunction to stop the foreclosure sale.

On July 24, 2015 a Franklin (Williamson County), Tennessee Circuit Judge stopped a potential wrongful foreclosure in Tennessee. My office was acting as co-counsel to Jeff Barnes PA. As part of the ruling made on the Tennessee foreclosure. The Judge looked at all of the issues brought forward in a lawsuit against the Bank of New York Melon. The Court stopped BONY from foreclosing in Tennessee. It is important to note that the Tennessee homeowner had previously attempted to file this lawsuit by herself but was overwhelmed by the Bank’s lawyers and forced to dismiss her lawsuit. This is a common mistake that I see and I do not advise bringing a complex Tennessee foreclosure defense lawyer styled lawsuit alone. As a result of our work the Tennessee foreclosure was stopped, and the Banks motion to dismiss was denied. This allowed the Tennessee homeowner facing foreclosure to avoid having to file Chapter 13 Bankruptcy as there was alleged bank fraud.

This specific case concerned an attempt by MERS (also known as the Mortgage Electronic Registration Systems) to convey its “interest” in a deed of trust on behalf of Countrywide to Bank of New York Melon who was claiming to act as the alleged trustee of a Countrywide securitization. Unfortunately for the Bank, and fortunately for the Tennessee homeowner that was trying to stop the lawsuit, two completely separate trusts were claiming that they owned the loan (a CWMBS and a CWALT). Oops! Despite the Banks position that it was “confident of a victory” the Court looked into the issue and saw things differently. My office, with the help of Jeff Barnes, Esq. who drafted the BNY’s Motion to Dismiss demonstrated to the Judge the the Banks Motion to Dismiss should be denied.  I negotiated the injunction stopping the foreclosure of the Tennessee home which has stopped the Tennessee foreclosure sale.

In addition to this, homeowners in Tennessee are waiting to see the outcome of the MERS issues are currently on appeal in Tennessee following the Ditto decision which, like many other appellate courts throughout the US, held that MERS has no independent interest in real property despite claiming that it does. Many deeds that come into my office state that the Tennessee homeowner facing foreclosure owes and “indebtedness” to MERS although MERS never lends money to anyone, and no Tennessee Homeowner that I have ever met owes MERS money.

The ruling is significant because Tennessee Courts are starting to look more closely at fraudulent bank transactions. Please contact my office if you have any issues with your servicer or bank and may be facing a foreclosure in Tennessee.

Photo credit: Images_of_Money / Foter / CC BY

 

 

 

Photo credit: Images_of_Money / Foter / CC BY