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.

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