There are several ways to stop a sheriff’s sale in Ohio. This post discusses several ways to stop a sheriff’s sale with plenty of good information to help you understand your options.
Foreclosure is the legal process of a lender enforcing the mortgage against the property of a homeowner or landlord. If you are a tenant, you probably make routine payments to the landlord for the property you are renting.
A Mortgage Servicer Must Show Compliance with Housing and Urban Development Regulations Prior to Initiating Foreclosure Action
In Wells Fargo, N.A., vs. Awadallah, 41 N.E.3d 481 (2015), the Ninth District held that where a note and mortgage requires compliance with HUD regulations, such compliance is a condition precedent to bringing a foreclosure action. A condition precedent is something that must occur before something else will or can occur. Ms. Awadallah’s promissory note and mortgage were prepared on Federal Housing Administration forms and required that the bank, as a condition of receiving federal money, meet all HUD requirements prior to filing a foreclosure action. Under HUD, Wells Fargo was required to have a face-to-face interview with Ms. Awadallah, or make a reasonable effort to arrange such. At minimum, Wells Fargo was required to send a certified letter to Ms. Awadallah and make at least one trip to see her at the mortgaged property. It failed to do so.
Wells Fargo failed to present evidence to the Ninth District regarding their reasonable effort to make a visit to Ms. Awadallah’s home, which is expressly required under her note and mortgage and federal regulation. Wells Fargo argued that they didn’t need to meet that requirement because after the foreclosure action was filed, the parties attempted to settle the case in mediation. Wells Fargo argued that the purpose of the in-person meeting, as required under HUD, is to consider loss mitigation and that court-sponsored mediation serves the same purpose. The Ninth District disagreed, stating that mediation after the foreclosure action has been initiated does not show compliance with the federal regulation. Wells Fargo failed to strictly comply with standard regulations set forth to protect consumers. Thus, Wells Fargo did not satisfy the conditions precedent to filing a foreclosure action against Ms. Awadallah. Therefore, Wells Fargo was not entitled to succeed on its motion for summary judgment. The Ninth District reversed the judgment and sent the case back for further proceedings.
Robo-signing: A still present problem for homeowners
“Robo-signing”. Most homeowners are aware of the term as a type of fraud that involved banks and mortgage servicers colluding to fabricate false documentation. The servicer would fashion legal documents of property ownership they did not have in order to initiate foreclosures on properties. Countless homeowners lost their homes when these documents were filed with the foreclosure action as “true and accurate” documents before the courts.
There was an attempt at culpability for this debacle that ultimately resulted in a $25 billion National Mortgage Settlement among the five leading mortgage servicers. Robo-signing never should have happened in the first place, but most of America was given the impression that the settlement was the end of it.
However, writer David Dayden of the financial news and analysis blog Naked Capitalism asserts that robo-signing has continued to this day. Dayden presents as proof an email sent to a former mortgage industry loan officer-turned-licensed private investigator specializing in securitization and chain of title analysis. This former mortgage industry insider is often called upon as an expert witness in foreclosure defense lawsuits. The email came from a document services provider working for large mortgage firms. The sender promises clients “peace of mind” that if documents are missing in a mortgage recording, their highly-trained researchers will locate and record these documents. In doing so, they create plausible deniability for fabrication of mortgage records.
The email to the former loan officer turned investigator requests a signature for an assignment of mortgage from the investigator. The investigator informed Dayden this isn’t the first time he’s been solicited for such a request. He theorizes that these companies are attempting a form of mutually assured destruction. If they can get him to sign on a forged record, it would indicate he is complicit in foreclosure fraud and tarnish his reputation and credibility as an expert defense witness. Alternatively, he posits that maybe they really did just need someone to help produce this mortgage assignment, and his name came up because he’d previously worked for the bank that needed it.
However, it’s likely worth noting that this same company was just fined $1.6 million in restitution and civil penalties by the Consumer Financial Protection Bureau for not honoring modifications for loans transferred to them by other servicers.
The investigator initially feigns ignorance. He asks for more information from the firm. The company responds by again indicating that an assignment is needed to show the bank assigned the loan over to the services firm. The “team lead” who had been communicating with the investigator attached a copy of the mortgage – which included confidential information that likely violated privacy laws.
The investigator then asks for a “prepared assignment,” which is a template from the company to fill out. Company responds with an attachment with blanks for investigator to fill in. It’s pre-signed and pre-notarized, with amounts that differ from the actual note (indicating the company wanted the document to appear as if it was first created in 2002).
Dayden characterizes this as “solicitation to commit a felony,” specifically, to fabricate a mortgage document. The investigator says that by “recreating chains of title,” they are dumping “garbage” into the courts daily.
Catching this kind of flaw in the chain of documentation requires the help of an attorney who is familiar with the intricacies of the foreclosure process and can spot irregularities. The firm of Doucet & Associates specializes in foreclosure defense. If you are facing foreclosure, call Doucet & Associates to schedule a consultation and let us help you save your home.
Defending Foreclosure: The Basics and How to Use Them
Receiving a court summons for foreclosure is frightening. You find yourself pondering questions you never thought you would encounter. Can you save your home? Will your credit report be affected? Where will your family live?
The bank is telling the court that it has a right under the mortgage to foreclose on you. However, keep in mind that you have rights too, and it is legal, ethical, and smart to assert all of your rights with the help of an attorney when facing foreclosure.
Efficient foreclosure defense can allow you to stay in your home while you litigate your case, and we help many of our clients to save their home. However, if you are looking at other options, we can also help you obtain a deficiency judgment waiver in the situation that you leave your home, such as in a foreclosure sale, short sale, or deed in lieu of foreclosure agreement. We also help many clients to apply for and obtain a loan modification that reduces their principal, interest rate, and monthly payment.
Some of the defenses that experienced foreclosure defense attorneys employ to delay or dismiss foreclosures are:
Failure of Condition Precedent
The terms of the Note, Mortgage, and federal guidelines generally require specific steps the bank has to take before it can begin a foreclosure. If the bank fails to comply with the requirement to serve the homeowner with notice of default or to conduct necessary meetings with the homeowner, the court may dismiss the foreclosure.
Lack of Standing
When foreclosure proceedings begin, a lawsuit must be filed and served against you. You become the defendant, and the bank is the plaintiff. The bank must demonstrate to the courts they are the party legally entitled to foreclose on you. This is the legal concept of “standing”. You can bring the plaintiff’s standing into question as a foreclosure defense, and they must prove that they have the standing to foreclose. As the news has shown over the last several years, ownership of a mortgage can be a complicated thing with most loans being securitized, bought and sold multiple times. The bank’s errors, improper or incomplete documentation, or fraud may cause them to have a hard time proving their standing. If they can’t prove it, the lawsuit may be dismissed.
Unfair Lending Practices
If your bank has been deceptive about your loan, acted unfairly, or failed to disclose required information, you may be able to challenge foreclosure based on these bad acts. The Truth In Lending Act (TILA) requires lenders to disclose a great deal of information, including the annual percentage rate, payment schedule, and other information about the loan. Lenders who do not give borrowers the correct information TILA requires have broken this law.
There are many other defenses that may be raised, such as unconscionable terms, foreclosing on an active service member, and failure to properly invoke the court’s subject matter jurisdiction. But a homeowner can’t use one of these foreclosure defenses if they don’t know the defense exists or how to properly raise it. There are federal and state laws intended to protect homeowners, and those defenses can delay or dismiss foreclosure proceedings.
If you find yourself facing a bank in a foreclosure lawsuit, you know they have their attorneys working to protect the bank. Your best option is to get an attorney on your side to review everything and protect your interests. Contact Doucet & Associates to help ensure that your rights are protected.
Defending Against Foreclosure: Notice Requirements & Certified Mail
If the bank wants to foreclose on a home, often if must send one or more letters via certified mail to the borrower. If the bank fails to do this, it can be a solid defense to foreclosure for the homeowner. Knowing if the bank is required and has not done so can help save your home and possibly get the foreclosure dismissed.
When a bank files for foreclosure, there are certain actions the bank has to have taken to comply with this contract formed by the mortgage and the note. These actions are known as “conditions precedent.” Specifically, a condition precedent is an event which has to occur before the title (or other right) to the property will actually be in the name of the party receiving title. That is to say, these are the actions the bank must take before they legally claim ownership of the property mortgaged.
One important condition precedent is the notice requirement. When the borrower misses a payment, the bank needs to inform the borrower that he is behind. Or when the bank wants to accelerate the loan and declare the outstanding balance due, the bank needs to tell the borrower that this has occurred. It is common that these notices are required to be sent and delivered by certified mail. One of the most critical parts of certified mail is the proof of delivery.
Every mortgage should contain a clause inside it that details when and how the bank needs to inform the borrower that they are in default. One example of a such a clause would be that notice is to be given “by mailing such notice by certified mail addressed to Borrower at the Property Address * * *. Any notice provided for in this Mortgage shall be deemed to have been given to Borrower or Lender when given in the manner designated herein.”
Therefore, the conditions precedent under the mortgage are that the bank must both provide notice to the borrower and that this notice must be sent by certified mail. In Childers, the court reversed a grant of summary judgment in favor of the homeowner when there was no evidence provided that the notice required by the mortgage had ever been mailed. Contimortgage Corp. v. Childers (May 4, 2001), Lucas App. No. L-00-1332.
In Ohio, the courts have found that the failure of the bank to satisfy the certified mail condition precedent requirement is a defense to the bank’s foreclosure:
- In 2004, the Ohio Ninth District Court of Appeals found that the bank failed when there was no evidence that the notice had been received, finding that “although [a] unsigned letter is labeled as “certified mail,” [the mortgagor] produced no certified mail receipt, acquisition of which is ordinarily the reason for sending a letter via certified mail.” Mortgage Elec. Registration Sys., Inc. v. Akpele, 2004-Ohio-3411, ¶ 12.
- In 2007, the Ohio Twelfth District held the same way in where a mortgage required notice to be sent by certified mail, and the bank said the notice was sent but could provide no evidence it was sent that way. First Financial Bank v. Doellman, 12th Dist. Butler No. CA2006–02–029, 2007-Ohio-222.
- In 2009, the Ohio Tenth District held that the mailing of a notice of default to a mortgagor by certified mail did not satisfy the condition precedent notice and delivery requirement when the certified mail envelope was returned unclaimed. “Notification that certified mail is being held for a recipient is undeniably distinct from delivery of the certified-mail contents.” Nat’l City Mortgage Co. v. Richards, 2009-Ohio-2556, ¶ 28, 182 Ohio App. 3d 534, 545, 913 N.E.2d 1007, 1015.
The final case is important in that it shows that the certified mail requirement means more than just the bank putting the letter in the post. Certified mail is a way of guaranteeing delivery and the bank cannot claim that the notice was received where it has knowledge that the borrower did not get the certified letter. The court turned to the dictionary and held that “delivery must presume the giving or yielding of possession or control to another. See Black’s Law Dictionary (7th Ed. 1999); Webster’s Encyclopedic Unabridged Dictionary (Random House 1997).” Richards, 913 N.E.2d at 1016.
So if there is a foreclosure action filed against you, pull out your mortgage documents and see if there is a certified mail notice requirement, or bring the paperwork into us and let us do the work for you. The notice and condition precedent rules can be powerful weapons against the bank. If we can show that the bank failed to perform according to their obligations, you might be able to save your home.
Doucet Prevents Default Judgment in Reverse Mortgage Case
Doucet & Associates Co., L.P.A. focuses on foreclosure defense because we firmly believe that the needs of innocent consumers can be eclipsed in court by massive banks. Because of the size of today’s banks, it is easy for banks to cut corners and neglect their duties to their customers under the guise of efficiency, which often contributes to foreclosure. However, this activity can result in illegal behavior, especially when short-term profits outweigh basic human decency. In the case of our client, it likely jeopardized her mother’s estate.
Our client is the executor of her late mother’s estate. The estate included a home subject to a reverse mortgage that came due upon the mother’s passing. Unlike conventional mortgages, a reverse mortgage requires no monthly payments and accrues interest until it comes due after the borrower dies, moves out of the property, or sells the house. Because interest is not paid during the life of the loan, a reverse mortgage can result in a substantial debt when it finally comes due. If the borrower dies, it usually means that the lender has to go through the borrower’s estate to collect the outstanding debt, which can be troublesome for whoever is tasked with the estate’s management.
OneWest, the bank holding our client’s note, filed a foreclosure lawsuit in an attempt to collect the outstanding reverse mortgage debt. If a foreclosure lawsuit is filed in Ohio, the defendant has twenty-eight days to file an answer. If no answer is filed, the defendant may face a default judgment. As the executor of her mother’s estate, our client was the one tasked with the responsibility of answering the lawsuit. However, our client asserts that OneWest attempted to circumvent the law by foreclosing on her mother’s home without first providing notice to the family. Had the foreclosure lawsuit gone unnoticed, a default judgment would have likely been entered against our client.
OneWest alleged it was unable to find the addresses of the family members to notify them of the outstanding debt and foreclosure, yet our client’s brother lived next door to the mother’s home. Our client was not even made aware of OneWest’s foreclosure lawsuit until the bank servicing on her brother’s home notified her. She hired Doucet & Associates to file a motion for additional time to properly respond to the foreclosure lawsuit, and hopefully save the family’s estate. The court granted the motion and Doucet & Associates is now working to protect the mother’s estate and ensure all debts are properly paid.
Time is always an important factor in a foreclosure lawsuit, and this added time will allow for our law firm to properly analyze the case and create a solution that best suits our client. As a law firm focused on consumer law and foreclosure defense, it is unfortunate to say that we experience this sort of behavior from banks quite often. We have seen, time and again, that banks would much rather file for foreclosure and attempt to keep other parties in the dark than settle the debt on terms that all parties involved can agree on. If you are currently dealing with a foreclosure lawsuit, or need advice managing an estate, call Doucet & Associates at (614) 944-5219.
Foreclosure Defense After Bankruptcy
When someone files bankruptcy, all the causes of action and counterclaims that they have as of the date of filing are included in the bankruptcy estate (usually as unliquidated damages), irrespective of whether those claims are specifically mentioned in the schedules.
That means that a homeowner generally cannot bring those causes of action later against the lender, if they end up facing foreclosure. For example, a borrower who obtains a loan in 2002 and receives a bankruptcy discharge in 2008 can’t then bring a claim against the bank in 2011 for what happened during 2002. Because states like Ohio allow you to bring old claims against a bank suing you on the note in recoupment, you could be giving up your ability to fight off the bank later. Thus, if you are thinking about bankruptcy, it is important that your bankruptcy and foreclosure lawyer understand your situation to ensure potential claims are not missed.
How to Answer a Foreclosure Lawsuit
Defined A lawsuit is a legal action filed by a party seeking to enforce his or her legal rights. A foreclosure action is one whereby a lender seeks to enforce its legal rights by foreclosing on the mortgage,* taking the property, selling the property, and recouping the money the owed under the mortgage.** When the amount recouped by the sale of the property is less than the amount owed on the mortgage, the lender will likely seek to require the borrower pay the difference. This difference – the amount the borrower must pay after the sale – is called a deficiency judgment. Depending on the sale price of the property, this deficiency judgment can be substantial.
The Answer The answer to a foreclosure lawsuit is exactly what is appears to be – a A borrowers answer to the allegations made in the lawsuit (sometimes called a foreclosure “action” or “claim.”) The lender is the “plaintiff” and the borrower is the “defendant” when the lender files a foreclosure lawsuit against the borrower.
The answer to the foreclosure contains three sections, as described below. ! It is very important all defenses known to the borrower at the time the answer is filed are included within the Answer. Civil Rule 12(b) requires “every defense to a claim…must be asserted in the [Answer]…” Not including the defenses in the Answer can cause the borrower to waive his or her ability to raise the defenses later.
If a rough Answer has already been filed in the lawsuit, the borrower may be able to file an Amended Answer.
See the chapter in 23 Legal Defenses to Foreclosure called “Amended Answers” if this applies in your situation (Also See Appendix E to 23 Legal Defenses to Foreclosure.)
Timing It is critical that an answer be filed within the required time frame under the rules of your state. Most states require the lender say within the lawsuit paperwork (within the Complaint, or on a cover sheet) how long a borrower has to file his or her Answer to the foreclosure. Whether a date is stated or not, the Answer usually must be filed within 20-30 days from the date served. If and Answer is not filed, the lender can move for default judgment, which means the borrower doesn’t disagree with the foreclosure, even though he or she was given an opportunity to do so.
If it is nearing the deadline or the lender hasn’t requested a default judgment yet, it is generally appropriate to file a “Motion for Extension of Time.” (You can find an example here.) Instead of filing an Answer to the foreclosure lawsuit, the borrower may file a “Motion to Dismiss,” which stops the clock running on the need to file an Answer until the Motion to Dismiss is ruled upon by the Court.
If you believe a defense is present that warrants a Motion to Dismiss, this will stop the foreclosure clock until the court decides whether dismissal is warranted. (See Appendix C.)
Things to Consider When Beginning a Foreclosure Defense The most significant item to consider is the impact fighting a foreclosure will have on the amount the borrower might be obligated to pay post-foreclosure via “deficiency judgment” (the difference between the amount the property sells for at auction and the loan amount still owed.) The amount owed at the end of the foreclosure action generally includes the amount of interest and penalties accumulated between the default date and the date of final judgment, as well as (in most states) attorney’s fees.
If the borrower thinks he or she might end up in bankruptcy if the foreclosure defense fails, then these accumulating costs might be less of a concern.
Next, consider if you wish to have a jury trial or a trial in front of a judge. This designation should be made within the Answer, usually by writing “JURY TRIAL DEMANDED” under the title of the document, then add a section after any Counter Claims titled “JURY TRIAL DEMANDED” and write “Defendant hereby demands a trial by jury.”
It is usually a good idea to demand a jury trial, or one judge will be making all of the decisions. (Again, an example of an answer is in Appendix D of this book.)
What an Answer Must Contain The answer to the foreclosure lawsuit has three major parts to it: 1) A statement admitting or denying the allegations made in the Complaint, 2) A list of defenses to the foreclosure lawsuit, and 3) A list of affirmative defenses to the foreclosure lawsuit. Sometimes there is a section called “Counter Claims” which acts like a counter-lawsuit, suing the lender for its own violations of the law. Each will be discussed below.
! Most states are “notice pleading” states, which means an answer only needs to put the other side on notice of your defenses.
An answer generally does not require a laundry list of facts supporting each defense, just enough information to put the other side on notice of how you intend to defend the lawsuit at trial. However, counter claims should contain each of the “elements” that establish that particular counterclaim. (Each of the chapters in this book give you the elements for each claim.)
Admitting or Denying Allegations The first section of the “Answer” admits or denies each allegation of the lender, paragraph by paragraph of the complaint.
For example, paragraph #2 of the complaint may allege you have not made a payment since January 1.
If you actually stopped making your payments on March 1, then you would deny the allegation in paragraph #2.
Your denial would appear like this in the Answer: “Defendant denies the allegation contained in paragraph number 2 of the complaint.”
You should number each paragraph that admits or denies the allegations in the complaint, addressing each allegation made by the lender.
Defenses The defenses section of the Answer is the section where the defendant-borrower states the reasons why the lawsuit should never have been filed because the plaintiff-lender is “flatly wrong.” Each defense only needs to be a short and plain statement of the defense raised, unless fraud is one of the defenses, in which case the specific grounds of the fraud must be stated.
Generally, most of the defenses raised in this book won’t fall under this section, but rather under the Affirmative Defenses section, as described below.
A defense would include a statement to the effect of “you got the wrong guy.” Formally, this would be defense entitled, “Failure to State a Claim.”
Worth Repeating! It is very important all defenses known to the borrower at the time the answer is filed are included within the Answer. Civil Rule 12(b) requires “every defense to a claim…must be asserted in the [Answer]…”
Not including the defenses in the Answer can cause the borrower to waive his or her ability to raise the defenses later.
If a rough Answer has already been filed in the lawsuit, the borrower may be able to file an Amended Answer. See the section called “Filing Amended Answers” if this applies in your situation. If you make a mistake and include a defense as an affirmative defenses, or an affirmative defense as a defense, most courts will still accept the defense. (See Civil Rule 8(c)(2).)
Affirmative Defenses Affirmative defenses are the rough equivalent of “yeah, but…” That is, the lender is not flatly wrong in filing the foreclosure action, but there is some legal reason to avoid judgment in the lender’s favor. For example, the lender might have sued the right person, but failed to mail a required Notice of Acceleration, which most mortgages/deeds of trusts require occur before the lender files foreclosure. This is required under covenant 21 or 22 of most mortgages and creates a “conditions precedent” before foreclosure can begin.
That is, the lender must mail the notice and wait 30 days, or it cannot foreclose. If this is applicable in your situation, you may be able to have the case dismissed, force the lender to mail you the correct notice, and then wait 30 days before refiling. (See Defense #12: Conditions Precedent for more information on this.)
Counter Claims Counter claims are mini-lawsuits filed back at the lender. Instead of filing a separate lawsuit against the lender, you may include a section within the Answer document that alleges claims against the party suing.
If you think a counter claim is applicable, you must file it in the foreclosure action, or be forever barred from bringing it.
! Civil Rule 13(a) requires the Answer you file include as a counterclaim any claim that – at the time of the lawsuit’s service – arises out of the transaction that is the subject matter of the opposing party’s claim.
In a foreclosure lawsuit, this means any claims the homeowner has against the lender due to a defect in the mortgage must be filed with the Answer. This is called a compulsory counterclaim. It means that if you lose the foreclosure lawsuit and later find out the…