Sheriff's Sales Stopped to Date

I added a small counter on the top of this site to count the number of Sheriff's sales that were scheduled and then cancelled because of a pleading I filed on behalf of a client.  In a way this is a measure of success and the bigger that number becomes it would appear that we are having more success.  Viewing that number as a measure of success will be short sighted and ultimately demonstrate a lack of success. 

I want homeowners who have a judgment against them and a Sheriff's Sale scheduled to know that there's still hope.  However, I want homeowners facing foreclosure to learn that they must defend the lawsuit and hire an attorney to do so.  The earlier the better.  As soon as a complaint is received the homeowner should be contacting an attorney.  In the early stages legitimate defenses must be met and overcome by the Bank.  After judgment, those same defenses can be avoided by demonstrating a lack of "excusable neglect".  The homeowner is again put on the defensive side of the issue.  Instead of taking charge of the litigation; explaining the many failures of the Bank to follow the rules (rules previously established by the Bank), the homeowner is left hoping the Court will understand their plight.

I am not implying that the Courts or the Judges are less than fair.  But sometimes in a fair game homeowners will lose.  Do everything possible to put yourself in a position to win; i.e keep your house with a manageable payment.  Defend the foreclosure complaint; hire an attorney, and do it early in the process.

Occupy Wall Street and Foreclosures

If you listen to the many voices coming from the Occupy Wall Street crowd, it is difficult to identify the purpose of the protest.  The problem is that the purpose does not fit neatly into a sound bite or onto a button.  What is the overarching theme throughout all of this is that people are challenging the status quo.  A revolution in thinking.  In college they taught that the beginning of the 1900's was a similar revolution in thinking; arts, religion, agriculture, industry.

What does this have to do with Foreclosure Defense?  Up to this point people have blamed the homeowner and the homeowner blamed himself/ herself.  The homeowner truly thought that a loan modification was the Bank's attempt to help.  The homeowner fell behind, couldn't catch up, the Bank had to file foreclosure, but then the Bank came to the rescue with a modification.  People have been accustomed to having the Government solve major issues, and therefore the Government can solve this issue.

Foreclosure Defense and those practicing it should be educating the public that the way to correct the foreclosure problem is to defend the foreclosure complaint.  The Bank has no desire or incentive to work out a reasonable modification.  The homeowner and the lawyers involved cannot understand why the Bank will not work with the homeowner.  If the house goes to Sheriff's Sale the Bank will certainly receive less than what the Bank would recieve if it worked with the homeowner.  Wrong. 

In May of 2011 Ginnie Mae, our Federal Governement, issued $25.4 billion dollars in mortgage backed securities.  The thought process by the Governement is that it must keep putting money into the system to keep liquidity in the market.  The unintended result is that Banks do not have to make good business decisions.  The Government encouraged Banks to make loans without considering a business decision.  Now the Banks do not have to consider business decisions when a mortgage goes into default.  Simply foreclose, purchase the home at Sheriff's Sale and eventually make a claim on the Government guarantee of that loan.  Why wait 30 years to get paid in full when a foreclosure dramatically reduces the time.

The Federal Government will never simply stop the current system, but individuals can dramatically slow down the system by defendning the foreclosure complaint.  The Bank faced with actual litigation is more inclined to make a business decision instead of simply following the same pattern of foreclose, Sheriff's Sale, make a claim against the Federal Guarantee.

Occupy Wall Street is in part an opportunity to inform homeowners facing foreclosure that they have the means to correct the problem without waiting for the Government to correct the problem.

The Plan

I was recently asked to explain my plan for defending foreclosures.  The Plan is really pretty simple.  Treat a foreclosure complaint like real litigation.  Examine the evidence presented; compare the evidence to the applicable law, and formulate a defense. 

There are a number of issues that have been widely discussed such as "robo-signing" or "show me the note".  These issues and many other issues exist in many foreclosure cases.  Each homeowner is an individual; each mortgage note has been handled slightly different; each mortgage has been treated differently.  The Plaintiff is not the same and the allegations are not the same.  So the Plan for the defense is slightly different.  However, the ultimate Plan remains the same: Defend the Foreclosure Complaint.

While this seems like a rather simple approach the Plaintiff in the Foreclosure Complaint is not adequately prepared to litigate every foreclosure.  By making the Plaintiff treat the complaint like real litigation the homeowner can gain some leverage in the negotiations and possibly obtain a loan modification that makes sense.

The Unfortunate Foreclosure Practice

There are a number of defenses available to individuals facing foreclosure.  As individuals have recently contacted my office to defend their foreclosure complaints from the beginning, I am excited to see a number of available defenses.  It feels very satisfying to explain a potential defense and a strategic outcome to the client and sense their relief.  Unfortunately, the majority of the foreclosure defenses with which I have been involved have been severely damaged by the time I became involved.  Legitimate defenses have to be raised in a motion for relief from judgment, or I have to argue on appeal that available defenses were asserted and overlooked by the trial court,

If a homeowner aggressively defends the foreclosure complaint from the begining, the outcome is more likely to be satisfactory for the homeowner,

Motion to Reconsider Dismissal in Duvall

The Attorney for US Bank recently filed a motion to reconsider the Ohio Supreme Court's decision to dismiss the certified conflict as being moot.  He cited authority that states that when an issue of great public importance remains, the Ohio Supreme Court has decided to hear the conflict even if the case has been rendered moot.  I believe there is a flaw in this thought process.  A certified conflict cannot be rendered moot by the parties.  The appellate decision which was found to conflict with another appellate decision still remains out there.  The conflict still exists.  The Ohio Supreme Court under Rule of Practice 12.2 could dismiss the certified conflict as not existing; i.e. we made a mistake thinking there was a conflict.  The Ohio Supreme Court under Rule of Practice 12.2 could dismiss the certified conflict as being previous determined by the Ohio Supreme Court in a prior case.

U.S. Bank vs. Duvall Dismissed as Moot

On September 21, 2011, the Ohio Supreme Court dismissed the certified conflict as moot.  There is not a great deal of case law on the subject because, (1) a certified conflict does not occur that often, and (2) even less often does a case that is certified as a conflict become "moot".  In fact, my first reaction when I was asked about the memorandum regarding mootness, was that it did not matter.  Even if the case was resolved, there still remained an appellate decision that conflicted with other appellate decisions.  With the issue being brought to the Ohio Supreme Court's attention, I sort of assumed that the Court would still want to resolve the issue.

Bank of America vs. Duvall Update

If you are following the certified question before the Ohio Supreme Court in Bank of America vs. Duvall then you are aware that Bank of America has recently filed its reply brief.  The briefing process can be frustrating at times.  Rather than address the issues and arguments presented, the opponents will mischaracterize the argument or the issue. 

A number of well educated professionals have differing opinions on the issue.  Rather than acknowledge the difference of opinion and argue the correctness of its position, Bank of America has decided that we cannot possibly be as smart.