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.

In Modification Process ......You Still Need an Attorney

I have heard a number of stories related to the loan modification process.  The homeowner has to repeatedly provide financial information; the homeowner never hears back from the Bank; a trial modification that was supposed to become permanent after three payments has not been approved after 6,7 or more payments.  I have heard the same stories from homeowners, as well as, from attorneys representing homeowners.  In fact I have two clients who were treated completely different based upon how involved I was in the process. 

In the first situation, the clients did everything on their own.  They filled out the application and simply had me review the documents.  The Bank offered them a modification that placed all interest, fees, and charges on the end of the loan.  The monthly payment was reduced only by requiring a balloon payment at the time of the original maturation date.  The attorney did nothing; the clients received little to nothing, except an unacceptable loan modification proposal.

In the second situation, the clients were in a trial modification, but a foreclosure complaint was filed anyhow.  Clients were told not to worry the complaint was a mere technicality.  I entered an appearance, filed an answer, raised affirmative defenses and filed a counterclaim for quiet title.  The clients' permanent modification came through as originally promised without a hitch. 

The above is not enough for a clinical case study, but it seems as though Banks provide better service and more meaningful modifications when the homeowner is represented by an attorney who treats the matter as real litigation.

The Need to Be Represented by Counsel

If you read the amicus brief that I submitted to the Ohio Supreme Court, one thing that should become painfully obvious is the need to be represented by counsel.  The first proposition of law that I set forth essentially walks the reader through the five cases that have been certified as being in conflict.  To the typical person facing foreclosure, all five cases appear to raise the same question and answer it in a variety of ways.  However, to an attorney who is trained in Civil Procedure; in the various degrees of the burden of proof, the burden of production, and the rules of evidence the cases differ greatly based upon the evidence submitted and the procedural stage of each case.  It is your home, please hire a professional to assist you.

Ohio Supreme Court Case 2011-218

The Ohio Supreme Court in US Bank NA vs. Antoine Duvall Case No. 2011-218 has certified the case as a conflict and has certified the following question for briefing:
To have standing as a plaintiff in a mortgage foreclosure action, must a party show that it owned the note and the mortgage when the complaint was filed?

On August 15, 2011, I filed an Amicus Curiae Brief on behalf of Homeowners of the State of Ohio and Ohiofraudclosure.blogspot.com.