SHERIFF SALES STOPPED TO DATE

I was keeping track of the number of Sheriff's Sales stopped, but I decided that this gave the wrong impression to viewers. An attorney should not be consulted as a matter of last resort. Instead an attorney should be consulted early in the process and the sooner an attorney is consulted the more likely a Homeowner will have a favorable result







The Law Office of Bruce M. Broyles



5815 Market Street, Suite 2, Boardman, Ohio 44512



Phone: (330) 965-1093 Fax: (330) 953-0450



bruce@brucebroyleslaw.com





The Ohio Rules of Professional Conduct suggest that the reader be informed that one of the purposes of this blog is to attract potential clients, and therefore should be considered attorney advertisement





Thursday, May 29, 2014

Foreclosures Measures Near Pre-Crisis Levels/ Another Attack on Homeowners Facing Foreclosures

Browsing the internet I came across a story from Market Watch that stated essentially levels of foreclosures have returned to "near pre-crisis levels". Below is the link to the story, which includes a graph that creates a new statistic "completed foreclosures per mortgage". I believe this graph is deceptive.
First, the writer picks 2005 and declares that this is the pre-crisis numbers. This is sort of like saying gas prices have gone down, as long as no one remembers when gas was less than $2.00/ gallon. Second, the writer uses "completed foreclosures" to gauge the decline in Homeowners Facing Foreclosure. Who decides when a foreclosure is completed. Is it when the decree of foreclosure is filed, when the Sheriff Sale takes place, when the Sale is confirmed. If the writer chooses confirmed Sheriff Sales, then "completed foreclosures" becomes a relatively small number.
I went to the Ohio Supreme Court website and pulled the statistical reports for the Courts of Ohio. If you characterize 2005, as the writer did, "Pre-Crisis" the number of foreclosures that were filed in the State of Ohio was 63,996. The graph demonstrates that the height of the crisis was 2010. In Ohio, there were 85,483 new foreclosure complaints filed. In 2009, there were 89,053 new foreclosure complaints filed. The statistical reports for 2013 and 2014 are not available from the Ohio Supreme Court at this time. The graph has the numbers in 2012 demonstrating a significant decline and close to the "pre-crisis" 2005 numbers. In 2012, there were 70,469 new foreclosure filings. The writer of the Market Watch article could say in Ohio we are approaching the "Pre-crisis" numbers of 2005; or there has been a decline from the height of the crisis. However, what the numbers really show is that there were 70,469 homeowners who were far enough behind in their mortgage payments that the Bank resorted to foreclosure. This does not include those still struggling to keep current, or those who are behind but only 1 or 2 months behind. If you look at the new foreclosures filed in 1999, 31,229 foreclosure complaints were filed. I believe that 1999 would be a better year to consider as "pre-crisis" but the available reports on-line do not go back any further. In 2012, the number of new foreclosure cases was still nearly double the number of foreclosures in 1999.
My analysis of the numbers really provides no better gauge than the Market Watch article. Especially, if you have stumbled upon this article in search for assistance in defending a foreclosure. The purpose of my writing is to again explain to the Homeowner Facing Foreclosure that the Banks and National media are working against you to make you feel alone and hopeless. The Market Watch article is intended to keep the Homeowner Facing Foreclosure from seeking help, from fighting. Things are better for everyone but you. Even the recent stories of Homeowners prevailing against their lenders are clouded with bad news. The story was not about victories, but about secret non-disclosure agreements and how homeowners can be harmed in the future. The stories should be simple, those who fight usually get help. Those who fight usually end up with a reasonable monthly mortgage payment. Do not be misguided by the National Media, you are winning the battle and Banks are starting to offer reasonable deals for those who are willing to fight. http://blogs.marketwatch.com/capitolreport/2014/05/29/five-states-make-up-nearly-half-of-u-s-foreclosures-corelogic/

Wednesday, May 28, 2014

Single Point of Contact

Recent changes to the Federal Guidelines have imposed new protections for consumers dealing with the companies that allegedly own and service their mortgages. These new regulations require the Lender or the Servicer to provide a single point of contact. The purpose is to prevent the Homeowner from being switched and transferred from numerous representatives while trying to seek assistance with their loans.
I am an attorney. I represent a number of homeowners facing foreclosure. I deal with Lenders and Servicers on a regular basis. The frustration each Homeowner going through this process is not an individual occurrence, coincidence, the result of the sheer volume of cases. In my opinion, it is purposesful and calculated to cause as many homeowners to be overwhelmed and frustrated and eventually walk away from their home.
Here, is a short list of the issues caused by Lenders and Servicers that I have encountered repeatedly:
1. You must be at least 3 months behind in your payments before we can assist you with a modification;
2. Your financial documents are out of date;
3. We did not recieve your loan modification application;
4. You did not qualify for HAMP;
5. Your trial payments must be in certified funds;
6. Your trial payments were not received on time;
7. You do not need to answer the complaint as the modification will resolve the issues;
8. You do not need an attorney as the modification will resolve everything;
9. You do not need to attend the default hearing as we are working on a loan modification.
Now the Lenders and Servicers are attempting over burden attorneys and frustrate attorneys representing Homeowners facing foreclosure by providing a single point of contact listing only the property address. If you call the single point of contact with the property address they are not allowed to give out any information unless you know the name of the Homeowner. (The reason I was calling was to find out the name of teh Homeowner.). All I need to know is which file to put the letter in. I already have a single point of contact; opposing counsel.
Well the strategy worked. I was frustrated long enough to post these comments. However, I am not ready to walk away from any of the Homeowners. The point of my writing is to again encourage Homeowners to continue to fight. Do not allow Lenders and Servicers to frustrate you until you give up. This is also another reason why Homeowners should contact an attorney. I cannot understand why Homeowners attempt to defend the biggest asset they will most likely ever purchase on their own. Not only is this a complicated area of law, litigation itself can be complicated. At a minimum you need an attorney who is well versed in litigation. An attorney who is familar with many of the defenses and issues involved in foreclosure may be more helpful, but the point is that you must defend the foreclosure. You must be prepared to file an appeal if you lose at the trial court level. It has been my experience that the more you are willing to fight, the more likely the Lender will eventually work with you to reach an outcome that is beneficial.

Sunday, May 18, 2014

God does not have tenure

In law school they told us that they were going to train us to think like lawyers.  While in law school they reminded us of many great philosophers who had stated that you could never have too many people trained in the law.  Once we left law school and joined private practice ethical considerations told us that we should  not take advantage of those untrained in the law.  When Courts interact with lay persons the Court will often describe the language of lawyers as legalese.   To recap;we are being trained to think in a noble profession but once we are educated we are apparently too well educated to speak in plain English for the common person to understand it.

As a result we end up in highly academic discussions regarding void versus voidable; jurisdiction over the person, subject matter jurisdiction, and original jurisdiction.  Combining these concepts we end up with academic discusions relating to whether a void judgment, which is a nullity and "of no force and effect", but cannot be challenged after an appeal  as the trial court has been divested of jurisdiction.

Scholarly trained professionals with contempt for common persons having intellectual discussions about complex issues without any regard for the everyday lives that foreclosures rip apart.  This is what it feels like we have become.  Then you start asking how did we become this.

 At a continuing legal education seminar the answer was given.  A panel of four highly esteemed professors were discussing the value of understanding the original intent of those who wrote the Constitution.   They all agreed that whatever value derived from the original intent given by the interpretor, the original intent could be derived from other contemporary writings.  Those who wrote the Declaration of Independence also wrote the Constitution, as well as, letters and speeches and sermons for and against the ratification of the Constitution.   The esteemed professors had various opininions as to the manner of determining the original intent and the importance to place on the original intent. After giving their presentations on the way to practice Constitutional Law, the emphasis to be placed on the original intent,  and how to determine the original intent, they opened the floor for questions.  I asked: are you are of the concept that the Declaration of Independence was a prayer, and did you consider the concept in your analysis of original intent.  Two of the esteemed professors ignored me like I was an an uneducated lay person who had no concept of what we were discussing being that of legalese and such.  One professor  stated that he has aware of the concept but had rejected it in his analysis.   The remaining professor asked me what I meant by prayer.  Without a great deal of thought I neverously stated a solemn personal discussion with the Creator of the Universe, God.  He responded that the founding fathers were certainly not speaking to a single all powerful being.  At most the use of the word creator would refer to nature or the spirit of the trees..  NO THEY WERE NOT PRAYING TO GOD!!
We have entrusted these four men with the training of our future lawyers.  Future lawyers are being told that the Declaration of Independence and the Constitution were in no way interested in God.  Not only is this shameful, but it also explains how plainly understood concepts are contorted  to reach intended results for specific clients without any thought of what is right, fair or required.  Instead we have legally trained advocates attempting to win each issue at all costs regardless of what might happen to the greater good.

Thursday, January 30, 2014

The Assault on Homeowners Continues

     Many Homeowners facing foreclosure sit in silence waiting for the Sheriff to someday knock on their door. Others leave their home when the foreclosure complaint is served upon them. These individuals think that there is no hope; they blame themselves, and assume there is nothing that can be done.

     Other Homeowners facing foreclosure contact the various help lines that are plastered on billboards throughout the State. Every now and then I will call the telephone number. I usually get an automated answering service which after a number of prompts disconnects the telephone call. Many of these individuals eventually end up with an agency willing to help the Homeowner complete a loan modification application. These Homeowners are usually asked to complete or update the application so many times that they eventually give up, or the process takes so long that it is impossible to modify the loan.

     Another group of Homeowners Facing Foreclosure turn to the internet. There are a number of helpful websites, all of which warn the Homeowner to hire competent counsel. Unfortunately, for every helpful website, there are numerous other websites that are simply not helpful. These websites direct the Homeowner to contact out of State Attorneys; tell the Homeowner how they can obtain free and clear title to their home in six easy steps using a Qualified Written Request (QWR); explain numerous defenses to the Homeowner related to the securization process, the credit swap payments, table funding, or a host of other issues surrounding the loan. These less than helpful websites arm the Homeowner with just enough information to allow the Homeowner to confidently walk into Court; lose the case and their house on a procedural or evidencial issue, and then declare that the system is a fraud.

     Now, Homeowners are being told that Attorneys that represent Foreclosure Defendants are really just "Pretender Defenders". Homeowners are told that these attorneys merely delay the inevitable while bilking all the Homeowners' money in fees. Instead, the Homeowner should purchase a Securitization Audit or a Mortgage Calculation Audit/Review. Armed with these "weapons" the Homeowner should find a "personal injury attorney" who is prepared to negotiate a settlement on behalf of the Homeowners. These websites have gone as far as to disparage the name of Attorneys who have won significant cases for Homeowners Facing Foreclosure.

    There are many good attorneys in Ohio who are Defending Foreclosures and obtaining Good results for their clients. Homeowners need to retain a competent attorney early in the process, at or before the foreclosure complaint is served. Instead, Homeowners are doing everything but contacting a competent attorney. When the Notice of Sheriff Sale arrives, then Homowners seek counsel. By this time many of their rights have been severely damaged if not lost.

Monday, January 20, 2014

The Courts Handling of Schwartzwald Should be a Wake Up call to Homeowners

The manner in which the Courts of Ohio have applied and interpreted Schwartzwald should be a wake up call to Ohio Homeowners. On October 31, 2012, the Ohio Supreme Court examineed the constitutional grant of jurisdiction of the Common Pleas Courts in Article IV Section 4(B), and determined that if a party lacked standing at the time the complaiunt was filed then the Court of Common Pleas "lacked jurisdiction". In Schwartzwald, the Ohio Supreme Court then stated that this lack of "jurisdiction" could be raised at anytime. The use of terms such as "jurisidiction" and "raised at anytime" lead attorneys representing Homeowners facing foreclosure to assert that a judgment was void if the Plaintiff lacked standing at the time the complaint was filed. The Schwartzwald issue arises in three situations: on direct appeal, in a motion for relief from judgment, and in a motion to vacate. On direct appeal the issue is simply whether the Plaintiff had standing. In a motion for relief from judgment, the Courts have to determine that the lack of standing renders a judgment voidable, and then the Court has to determien whether the three pronged test of Civil Rule 60(B) was met. In a motion to vacate, the Court must determine if the judgment is void. On direct appeal, a homeowner has to have defended the action and raised the issue in the trial court. In addition, the homeowner had to file an appeal within 30 days from the date of judgment. It seems as though the the Courts are willing to apply Schwartzwald in those cases where the Homeowner has diligently defended the action. In a motion for relief from judgment, the Homeowner has to demonstrate that he has a meritorious defense (lack of standing); that he has grounds under Civil Rule 60(B) for relief, and that the motion was filed within a reasonable period of time (not to exceed one year in most instances). A motion for relief is usually filed after the time to appeal has expired and the argument is essentially that the matter was not or could not be raised prior to judgment. A review of the cases demonstrates that trial courts are more likely to find "excusable neglect" when the motion for relief from judgment is filed fairly quickly after the judgment was filed. In a motion to vacate, the Courts have to find that the judgment is void and can be raised at anytime. In these cases, the Courts of Ohio have often ignored the actual language of Schwartzwald and instead found that the Ohio Supreme Court did not mean :jurisdiction" or that there is an additional type of jurisdiction that does not result in a void judgment. In the context of a motion to vacate a void judgment the Homeowner is much more likely to have his lack of action to be held against him. Homeowners should take notice that the Courts are less likely to assist Homeowners the more time that elapses. In addition, I am of the opinion that the Plaintiffs know that Homeowners are more likely to seek legal advice immediately before the Sheriff's sale, and therefore Plaintiffs will wait until a year has almost elapsed before filing the paper work necessary to initiate a Sheriff's Sale. More than a year will have expired since the judgment was filed and now the Court must find that the judgment was void. At this point the Court will begin to discuss the effect that such a determination would open up the "floodgates" or otherwise disrupt the real estate markets. The Courts will also start to focus more of their attention to be critical of the Homeowner's lack of action. Ohio Homeowners have valid defenses based upon Schwartzwald, but the Courts will not suffer or reward the Homeowner's delay. There are many competent attorneys doing good work for Ohio Homeowners, but their efforts are being greatly hampered by the Homwoners' delay. Ohio Homeowners must immediately seek legal advice when facing a foreclosure complaint

Tuesday, October 8, 2013

WEBSITE AND CONTACT

I write this blog in an attempt to be helpful and to encourgae homeowners facing foreclosure to seek legal counsel.  I recently realized that this blog has not been very helpful in allowing homeowners to contact my office.  The website for the Law Office of Bruce M. Broyles has recently been updated to allow individuals to quickly and easily contact my office by submitting an e-mail. 

Please visit my website at brucebroyleslaw.com and see the new contact form.

Friday, August 2, 2013

Update on Failure to Comply with PSA

I previously posted an argument for a motion to vacate based upon the Plaintiff's failure to comply with the Pooling and servicing agreement.  Counsel for the Banks continue to cite the same cases asserting that the Homeowner lacks standing to challenge the Plaintiff's compliance with the Pooling and Servicing Agreements.  Some Ohio Trial Courts are beginning to agree with the argument.  In both Columbiana County and Perry County the trial court, in ruling on motions for relief from judgment, found that the failure to comply with the Pooling and Servicing Agreement was a meritorious defense.

Other Courts are starting to agree with the concept. 
 
Alexander vs. Deutsche Bank National Trust Co. (N.D. Ohio West Dis.)
Case No.: 3:12-CV-02704;

BAC Home Loan Serv. v. McFerren (Ohio App. 9th Dist.), 2013-Ohio-3228;

Wells Fargo Bank, N.A. v. Erobobo, et al., 2013 WL 1831799
(N.Y. Sup. Ct. April 29, 2013); and

In Re Saldivar (June 5, 2013), United States District Court,
Southern District of Texas, case No. 11-10689.

The United States District Court, Bankruptcy Court for the Northern District of Ohio, decision in Alexander vs. Deutsche Bank National Trust Co. (N.D. Ohio West Dis.) Case No.: 3:12-CV-02704, stated:
A number of Ohio appellate courts have applied the general principal that a debtor may not
challenge an assignment between an assignor and an assignee and concluded that, under Ohio law, a mortgagor does not have standing to challenge an assignment of a mortgage.
***

            The Alexander Court then discusses the cases typically relied upon to challenge the Homeowners ability to raise the failure to comply with the PSA: Bank of New York Mellon Trust Co. v. Unger; LSF6 Mercury REO Invests. Trust Series 2008-1 v. Locke; and Deutsche Bank Nat’l Trust Co. v. Rudolph.  These cases are then discussed in light of Fed. Home Loan Mortg. Corp. v. Schwartzwald.
It does not follow, however, that Alexander is wholly barred from challenging the assignment. The Supreme Court of Ohio acknowledged the general principle “that standing is a ‘jurisdictional requirement’” that, if not present, subjects the complaint to dismissal. Schwartzwald, 979 N.E.2d at 1219. The court also stated “[w]here [a] party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends on whether the party has alleged . . . a ‘personal stake in the outcome of the controversy.’” Id. (quoting Cleveland v. Shaker Heights, 507 N.E.2d 323, 325 (Ohio 1987)). As the Sixth Circuit has noted, “[a]n obligor ‘may assert as a defense any matter which renders the assignment absolutely invalid or ineffective, or void.’ . . . Obligors have standing to raise these claims because they cannot otherwise protect themselves from having to pay the same debt twice.” Livonia Prop. Holdings, L.L.C. v. 12840-12976 Farmington Road Holdings, L.L.C., 399 F. App’x 97, 102 (6th Cir. 2010) (citing 6A C.J.S. Assignments § 132 (2010)).
 
BAC Home Loan Serv. v. McFerren (Ohio App. 9th Dist.), 2013-Ohio-3228.  While the McFerren Court did not address the issue, at footnote 4, the Court stated:
We note that it is unclear why a foreclosure defendant would lack “standing” to raise issues concerning the legal effect of prior assignments or other transactions in defending the foreclosure action. In that context, the defendant may raise legally relevant defenses as such would relate to the character of the obligation (i.e. secured or not secured) and to whom the obligation is actually owed (in cases of multiple assignments, to avoid the risk that multiple parties claim the right to collect). Bank of America relies upon Livonia Props. Holdings, LLC v. 12840-12976 Farmington Rd. Holdings, LLC, 399 Fed.Appx. 97 (6th Cir.2010), and Bridge v. Aames Capital Corp., N.D.Ohio No. 1:09 CV 2947, 2010 WL 3834059 (Sept. 29, 2010), in support. However, the procedural posture and substantive issues addressed in those cases are distinct from the instant matter and those cases do not stand for the blanket proposition that in all contexts an obligor may not raise defenses concerning the assignment of the obligation. Bridge is readily distinguishable because the mortgagor was a plaintiff seeking a declaratory judgment and the court addressed standing in the context of Ohio’s declaratory judgment statute. Livonia addressed the question of the meaning of “record chain of title” under Michigan’s foreclosure by advertisement statute. See id. at 99.

Both Wells Fargo Bank, N.A. v. Erobobo, et al., 2013 WL 1831799 (N.Y. Sup. Ct. April 29, 2013); and In Re Saldivar (June 5, 2013), United States District Court, Southern District of Texas, case No. 11-10689, find that the failure to comply with the Pooling and Servicing Agreement results in the transactions being void. 

Hopefully, the above information will be helpful.  Should any Homeowner or Attorney representing Homeowners need additional assistance, please contact my office.