Today, I filed a reply brief in Ohio Supreme Court Case No.:2011-1362 Federal Home Loan Mortgage Corp. vs. Duane Schwartzwald. The Ohio Supreme Court certified a conflict and asked the parties to brief the issue:
In a mortgage foreclosure action, the lack of standing or a real party in interest defect can be cured by the assignment of the mortgage prior to judgment.
An amicus brief was filed on behalf of Ohio Homeowners and Ohiofraudclosure.blogspot.com. You can review the brief by going to the Ohio Supreme Court's website or clicking on the link below http://www.sconet.state.oh.us/tempx/698840.pdf
In the Amicus Brief, I demonstrated that foreclosures require both an interest in the promissory note and an interest in the mortgage, and that the lack of one of these required interests could not be "cured" after the complaint was filed. Civil Rule 17A has some application, but Civil Rule 17A should not be perverted the way the Foreclosure Plaintiffs attempt to use it. I made clear and concise points and filed the brief in order to assist the Court.
The reply brief I filed may be found here:
http://www.sconet.state.oh.us/tempx/702641.pdf
The reply brief is very different. Essentially I wrote to accuse the Appellee Bank of filing a brief that was intended to distract the Court's attention and avoid addressing the issue. Appellee Schwartzwald filed a reply brief that addressed the issues and arguments raised by Appellee Bank. Schwartzwald's brief may be found, here:
http://www.sconet.state.oh.us/tempx/702618.pdf
I think the reply brief is well written and well argued, but I was left with the feeling that the Bank successfully distracted and avoided the issue. The Bank's brief spent so much time setting up straw figures and knocking them down that I was left feeling like the scarecrow after the flying monkeys were done. In the final analysis, the issue that the Court wanted addressed was given two short paragraphs by the Appellee.
This is yet another example of how Banks, their attorneys, and the Main Stream Media have decided that the best way to address the issue is to make as much noise as possible without saying anything. How many calls have attorneys received from people asking whether they will be helped by the recent National Foreclosure Settlement? How many Homeowners, currently in various stages of foreclosure, are clinging to the hope that the overtly publicized resolution will actually impact their current situation?
Bottom line is this: There has been no settlement, there is no written agreement, the parties have not agreed, and the Courts have not approved anything.
But the main objective was achieved. In all that noise, and just for an instant, people took their eyes off the ball.
Tuesday, February 21, 2012
Tuesday, February 14, 2012
National Mortgage Settlement: The Consumer Relief Framework
The Media has recently released that the Attorney Generals for various States have entered into a settlement with Five Major Banks regarding fraudulent practices. The final version of the settlement has not been drafted, let alone agreed upon. In addition, "settlement" at least implies that actual litigation was filed, and as such a Court may have to actually approve the settlement. Following suit with the entire process of mortgage securitization and the foreclosure filings, the Banks consider the Courts and the Legal System only as an afterthought and only when required.
Even though nothing has been finalized, agreed upon, or approved, a number of organizations have already started the rhetoric of "moral hazard" and "irresponsible borrowers". I have reviewed only the Draft of the Consumer Relief Framework, but even that reinforced my initial belief that this is another attempt to funnel money to the Banks in the name of assisting Homeowners. (In prior relief efforts the Federal Government has announced huge sums to assist Homeowners. Homeowners line up to apply for funds, and for a limited few that meet the eligibility requirements, the Government sends money to the Banks on behalf of the eligible Homeowner, of course. This time the Government did not even attempt the facade. The Governement and the Banks will just trade credits.)
Immediately, the Consumer Relief Framework talks in terms of "Servicers". Anyone who has had an issue with their mortgage should agonize over having to discuss the matter with a servicer. The Consumer Relief Framework then states:
"Programmatic exceptions to the crediting requirements listed below may be granted by the Monitoring Committee on a case-by-case basis."
The above is quoted not because of any earth-shattering revelation, but simply as an example of language of the agreement. With langaugae such as the above, it should be simple to see that little if anything will be accomplished for the Homeowner.
The Consumer Relief Framework then talks in terms of "HAMP", "31%", "debt to income levels", and "Loan to Value indices". HAMP has been a failure, but it will again give the general public the impression that the Government is doing something to help. The Courthouse Halls will be filled with comments of "I wish I could get my loan modified like that."
How is it that principle reductions, which have been rejected by Ed Demarco and the FHFA as being harmful to the American Taxpayer, are now acceptable? Suddenly, when the Banks have to come up with cash or credits, a principle reduction makes perfect sense. Second, the Banks have never pursued deficiency judgments in Ohio. Instead, the Homeowner receives a 1099 based upon the forgiveness of debt (which the IRS waives base upon a hardship). However, now the Banks can obtain a credit for the potential deficiency that was forgiven. I believe a majority of the credit set forth in the Consumer Relief Framework will be based upon deficiency judgments that were in past never pursued. The Banks will now have even less incentive to prevent a foreclosure. Instead of a loan modification, involving a principle reduction, the Banks will cram through even more foreclosures. But now in the name of the Consumer Refief Framework the Banks will pursue deficiency judgments in order to get credit towards their settlement.
http://online.wsj.com/public/resources/documents/GeneralFrameworkSettlementAgreementFeb2012B.pdf
Even though nothing has been finalized, agreed upon, or approved, a number of organizations have already started the rhetoric of "moral hazard" and "irresponsible borrowers". I have reviewed only the Draft of the Consumer Relief Framework, but even that reinforced my initial belief that this is another attempt to funnel money to the Banks in the name of assisting Homeowners. (In prior relief efforts the Federal Government has announced huge sums to assist Homeowners. Homeowners line up to apply for funds, and for a limited few that meet the eligibility requirements, the Government sends money to the Banks on behalf of the eligible Homeowner, of course. This time the Government did not even attempt the facade. The Governement and the Banks will just trade credits.)
Immediately, the Consumer Relief Framework talks in terms of "Servicers". Anyone who has had an issue with their mortgage should agonize over having to discuss the matter with a servicer. The Consumer Relief Framework then states:
"Programmatic exceptions to the crediting requirements listed below may be granted by the Monitoring Committee on a case-by-case basis."
The above is quoted not because of any earth-shattering revelation, but simply as an example of language of the agreement. With langaugae such as the above, it should be simple to see that little if anything will be accomplished for the Homeowner.
The Consumer Relief Framework then talks in terms of "HAMP", "31%", "debt to income levels", and "Loan to Value indices". HAMP has been a failure, but it will again give the general public the impression that the Government is doing something to help. The Courthouse Halls will be filled with comments of "I wish I could get my loan modified like that."
How is it that principle reductions, which have been rejected by Ed Demarco and the FHFA as being harmful to the American Taxpayer, are now acceptable? Suddenly, when the Banks have to come up with cash or credits, a principle reduction makes perfect sense. Second, the Banks have never pursued deficiency judgments in Ohio. Instead, the Homeowner receives a 1099 based upon the forgiveness of debt (which the IRS waives base upon a hardship). However, now the Banks can obtain a credit for the potential deficiency that was forgiven. I believe a majority of the credit set forth in the Consumer Relief Framework will be based upon deficiency judgments that were in past never pursued. The Banks will now have even less incentive to prevent a foreclosure. Instead of a loan modification, involving a principle reduction, the Banks will cram through even more foreclosures. But now in the name of the Consumer Refief Framework the Banks will pursue deficiency judgments in order to get credit towards their settlement.
http://online.wsj.com/public/resources/documents/GeneralFrameworkSettlementAgreementFeb2012B.pdf
Wednesday, February 8, 2012
A Brief Explanation of Robo-Signing
I have noticed that the more I argue on behalf of Homeowners facing foreclosure the less it becomes about the law. I have always tried to be a reasonable attorney when it came to settlement and civil litigation. I believe that I have developed a reputation as being a reasonable and practical litigator. However, recently I have been asked by Magistrates,by Judges in Chambers,and by Appellate Panels essentially "does it really matter?"
Rules of Civil Procedure appear to be unimportant; Rules of Evidence are not practical. A new legal maxim prevails: "When was the last time this person made his mortgage payment?" I read an interview of a local Judge in an Alumni Newsletter, and his comments provided an insight into his beliefs "people bought more than they could afford." Where did the judicial system gain this perspective? Not from some wrongful corrupt or illegal process, but from the constant drip of the information that the Lenders have put out for consumption. Look at the most recent article making the rounds in the popular periodicals http://www.forbes.com/sites/danielfisher/2012/02/07/mortgage-settlement-talks-look-like-tobacco-ii/
The article basically argues that Lenders have not done anything wrong. Robo-signing?; is this a bad thing? Since most people do not truly understand the concept the word seems to have no moral implication. Let's face it: if you have a newborn you know all about newborns, a parent of a toddler knows all about toddlers, if your kid plays soccer you know "offsides", a parent of a hockey player knows "icing". Unless you have been involved in a foreclosure, robo-signing is a foreign word that has no real meaning to you.
Robo-signing: some one with no training or understanding of accounting, lending practices or the law swears under oath and subject to the penalties of perjury that they have personally reviewed the records related to the Homeowner's mortgage and from that personal review they can say that the Plaintiff holds, or owns, or has possession of the promissory note; that the Plaintiff has an interest in the mortgage, that the entire balance of the note has been properly accelerated according to the terms of the note, and when the credits and debits from the last several years have been applied to the Homeowner's account I calculated the amount to be this specific number. Never mind that I have not looked at any record, have not been sworn, have no personal knowledge of the information contained in this affidavit, and my employer told me to sign so many of these affidavits before lunch. I also forgot: that is not my name and whatever a notary public is there isn't one watching me sign this document.
But the article was correct: the Homeowner did miss a payment. Due process; civil procedure, justice, equal protection under the law.... simply bothersome concepts that are clogging the Courts.
Rules of Civil Procedure appear to be unimportant; Rules of Evidence are not practical. A new legal maxim prevails: "When was the last time this person made his mortgage payment?" I read an interview of a local Judge in an Alumni Newsletter, and his comments provided an insight into his beliefs "people bought more than they could afford." Where did the judicial system gain this perspective? Not from some wrongful corrupt or illegal process, but from the constant drip of the information that the Lenders have put out for consumption. Look at the most recent article making the rounds in the popular periodicals http://www.forbes.com/sites/danielfisher/2012/02/07/mortgage-settlement-talks-look-like-tobacco-ii/
The article basically argues that Lenders have not done anything wrong. Robo-signing?; is this a bad thing? Since most people do not truly understand the concept the word seems to have no moral implication. Let's face it: if you have a newborn you know all about newborns, a parent of a toddler knows all about toddlers, if your kid plays soccer you know "offsides", a parent of a hockey player knows "icing". Unless you have been involved in a foreclosure, robo-signing is a foreign word that has no real meaning to you.
Robo-signing: some one with no training or understanding of accounting, lending practices or the law swears under oath and subject to the penalties of perjury that they have personally reviewed the records related to the Homeowner's mortgage and from that personal review they can say that the Plaintiff holds, or owns, or has possession of the promissory note; that the Plaintiff has an interest in the mortgage, that the entire balance of the note has been properly accelerated according to the terms of the note, and when the credits and debits from the last several years have been applied to the Homeowner's account I calculated the amount to be this specific number. Never mind that I have not looked at any record, have not been sworn, have no personal knowledge of the information contained in this affidavit, and my employer told me to sign so many of these affidavits before lunch. I also forgot: that is not my name and whatever a notary public is there isn't one watching me sign this document.
But the article was correct: the Homeowner did miss a payment. Due process; civil procedure, justice, equal protection under the law.... simply bothersome concepts that are clogging the Courts.
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