court

Nursing Home Residents Can Now File Lawsuits in Court

Nursing Home Residents Can Now File Lawsuits in Court

A federal agency that controls a large amount of Medicare and Medicaid funding decided to stop providing funds to nursing homes that force residents to use arbitration and forbid the right to go to court.

Arbitration is a technique used outside a court room where an unbiased third party makes a decision to resolve a problem between two other parties. Nursing homes are placing rules and regulations in contracts detailing residents are not allowed to take legal action in court.

“This is a huge step forward for the rights of everyday citizens. I applaud the agency for this new rule and encourage other agencies to follow, especially those that govern banks and mortgage companies,” Troy Doucet, the firm principal here, said. “It’s time wrong doing comes out of the secret shadows of the arbitration clauses.”

Over a million Americans live in nursing homes. Many agree to abide by arbitration policies simply because their initial need for health aid is bigger than their future need to take legal action in court. Nursing homes forcing residents to use arbitration have prevented serious claims of sexual harassment, abuse and wrongful death from court.

Many nursing home companies prefer to force the residents to use arbitration because it is more cost efficient. Government agencies and lawyers believe nursing homes force arbitration to keep legal matters from destroying good reputations. Taking away a person’s right to take legal action in court is irrelevant to why a person decides to move into a nursing home. Nursing homes are supposed to protect a person’s health and provide a safe atmosphere, not dictate a person’s legal actions.

Last spring, the Consumer Financial Protection Bureau began creating a rule that would prevent credit card companies from forcing consumers to agree to arbitration practices. Since the turn of the century, arbitration regulations have started to appear in a variety of contracts including student loans, employment contracts and cellphone contracts.

 

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Offender Reentry Into The Workforce

Offender Reentry Into The Workforce

Reentering the workforce for an offender can be difficult. The Legal Aid Society of Columbus (LASC) offers a couple clinics every year to help individuals learn about getting a criminal record sealed.

Under Ohio law, expungement is called sealing a record. This is a court process that allows individuals with a criminal history to have convictions cleared from public records and placed into a sealed court file. Having convictions cleared from public records can help individuals looking for jobs, licenses, and apartments. Sealed court files can still be viewed by law enforcement and prosecutors. A sealed court file can also be used against an individual in court cases being sentenced and convicted of committing a crime. However, a sealed court file cannot be used against an individual appearing as a witness in court testifying on another person’s behalf.

There are convictions that cannot be sealed in a court file. Crimes such as motor vehicle violations, driver’s license violations, sexual battery and rape cannot be approved for a sealed court file. Pending violations and other situations can cause a judge to refuse to seal a record. The Ohio Ex-Offender Reentry Coalition provides more information about convictions and situations that cannot be approved for a sealed court file.

 

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Legal Aid Society of Columbus Resources

Legal Aid Society of Columbus Resources

The Legal Aid Society of Columbus (LASC) provides civil legal services and resources for central Ohio residents in Franklin, Madison, Morrow, Marion, Union and Delaware county. You can apply for help from the LASC by filling out this application.

The LASC provides additional forms for the small claims courts in the counties it serves. Small claims courts handle disputes recovering smaller amounts in loss money lawsuits. Most of the time lawyers are not involved in small claims courts. You can read more about small claims court by clicking here. You can also access required forms for the small claims courts in every central Ohio county by clicking the links below.

Franklin County Municipal Court Small Claims

Delaware County Municipal Court Small Claims

Madison County Municipal Court Small Claims

Marion County Municipal Court Small Claims

Marysville County Municipal Court Small Claims, covers Union County

Morrow County Municipal Court Small Claims

The Legal Aid Society of Columbus also provides documents regarding foreclosure lawsuits and court information. There are free directions on how to respond to a foreclosure complaint and sample documents for requesting mediation, motion for extension of time, and a common pleas answer. You can access foreclosure documents by clicking here.

 

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What you, as the Consumer, should know about vehicle repairs

What you, as the Consumer, should know about vehicle repairs

What you, as the consumer, should know about vehicle repairs.

Whether you have had to get your car fixed for minor issues, or needed a complete auto-repair, you have rights according to Ohio Law.  The Ohio Administrative Code provides certain protections to consumers when it comes to getting their car serviced or repaired.  The following are just some of the requirements under the code:

  • Once you meet with the servicer in person, they must provide you with a form which indicates: (a) the date; (b) identity of the supplier; (c) your name and telephone number; (d) the reasonable anticipated completion date; and (e) if you requested, the anticipated cost of the repair or service. The form must also contain the following language:
    1. Estimate: You have the right to an estimate if the expected costs of repairs or services will be more than fifty dollars. Initial your choice:

____ written estimate

____ oral estimate

____ no estimate

  • If you request a written or oral estimate, the servicer must provide you with the estimate before starting service or repair
  • Your bill will not be higher than the estimate by more than 10% unless you approve a larger amount before repairs are finished.
  • The servicer must obtain oral or written authorization from the consumer for the anticipated cost of any additional, unforeseen, but necessary repairs or services when the total cost of the repairs or services, if performed, will exceed fifty dollars.
  • The servicer cannot represent that repairs or services are necessary if they are not.
  • The servicer cannot fail to disclose to you prior to starting any service or repair, that any part of the repair or service will be performed by a person other than the services or his employees, if the servicer disclaims any warranty of the repair or service performed by that person. The servicer must also disclose the nature of the repair or service which that person will perform, and if requested by the consumer, the identity of that person.

Ohio courts have found that when a supplier has engaged in an act or practice declared to be deceptive by the code, the consumer has a choice of remedies, including rescinding the transaction, or recovering three times the amount of the consumer’s actual damages. In Grieselding v. Krischak, the Court of Appeals Sixth Circuit, affirmed the trial court’s award of $1612 in treble damages, plus interest and attorneys’ fees stemming from a mechanic’s failure to notify the consumer of repairs beyond the stated estimate.

 

These are just some of your rights as a consumer, among many.  For more information see: O.A.C. 109:4-3-13, or call Doucet & Associates Co. LPA at (614) 944-5219.

 

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How to Make Use of Small Claims Court

How to Make Use of Small Claims Court

What Is Small Claims Court?

Small Claims Court handles the filing of cases that conform with the standards enacted by the Ohio General Assembly in Chapter 1925 of the Ohio Revised Code. This Ohio law requires that each county and municipal court establish a special division for lower money damage cases, generally referred to as “small claims court.” Small Claims is a division of a municipal or county court designed to provide easy court access to non-lawyers, and the cases are heard by a magistrate. The parties involved in the dispute are allowed to object to the magistrate’s decision and appeal to municipal or county court. Small Claims Court is designed to allow parties to more quickly have their day in court, without necessarily retaining an attorney.

Although the rules are more relaxed than in other court settings, small claims trials generally follow the Ohio Rules of Civil Procedure. In addition, each court has its own local rules which you will need to follow. Check with the Clerk of Courts.

What kinds of complaints are heard in small claims?

Small Claims Court in Ohio can only hear cases seeking to recover money owed. The most you can ask for is $3,000. A counterclaim (a claim filed by the opposing party against you) also cannot exceed $3,000. The court cannot hear cases for slander, libel, replevin (action for the return of specific personal property), malicious prosecution, abuse of process actions, punitive damages or other cases where more than money is pursued. Small claims court also cannot resolve claims against the agencies of the State of Ohio or against the United States government and its agencies.

Therefore, if you have a dispute involving $3,000 or less before considering interest or court costs the proper forum for the dispute is Small Claims Court. Just remember the Small Claims Court can order a judgment for money only. It cannot require a person or business to do something or to stop from doing something (i.e. it cannot issue an injunction).

Cases that initially fit the small claims criteria may be transferred out of small claims court:

  • If a case starts with a claim for $3,000 or less but then comes to include claims that exceed $3,000, the case will be transferred to the civil division of municipal or county court.
  • If one of the parties to a case requests it, a case may be transferred to the civil division of the municipal or county court.

 

Who may file a lawsuit in Small Claims Court?

Any individual 18 years of age or older or a corporate entity (such as a corporation, partnership, etc.) doing business in Ohio can sue or be sued in Small Claims Court. Each party may be represented by an attorney or may appear pro se.

If you are an officer or an employee of such an organization and are involved in a small claims court case on your organization’s behalf, you should seek the advice of an attorney before you file any document with the court. You may present evidence concerning your side in a dispute, but you may not engage in advocacy, such as questioning of witnesses in court or the presentation of arguments.

If you advocate in court on behalf of your organization, you may violate rules about the unauthorized practice of law-even if all you do is fill out forms and file papers. To avoid such a violation, contact an attorney to find out what you may and may not do on your organization’s behalf.

What is “Pro Se”

“Pro se” means “for himself” and a “pro se litigant” is an individual who appears for himself in court. When a small claims complaint is filed by an individual who represents himself, he is appearing “pro se.”  The individual who files the complaint is the “plaintiff” and the individual being sued is the “defendant.”  If an individual defends himself in a small claims action, he is also appearing “pro se.”

Do I need an attorney to file a lawsuit in Small Claims Court?

By law, the appearance of an attorney on behalf of any party is permitted, but not required. In fact, the goal of the small claims division is to make the court accessible to non-lawyers. Persons 18 or older may represent themselves in Small Claims Court. Keep in mind persons younger than 18 must still be represented by an attorney.

Because the amounts at stake are often less than the costs of retaining an attorney and the procedures may be less formal than in other courts, many parties elect to represent themselves. However, parties may retain attorneys to appear on their behalf and if the opposing party is represented by an attorney, it may improve your chances of winning to retain one.

What is the cost to file and where do I file?

The best strategy is to ask your local Clerk for the cost in your county. File your complaint at the Municipal or County Clerk of Court Office in the county where the defendant (the person you are suing) lives. Ask your local Clerk for the cost in your county or check the Clerk of Court website for that jurisdiction.

How do I file a lawsuit in Small Claims Court?

A small claims action is commenced by paying the clerk of the court a filing fee and filing a “summons” and “complaint.” The web site for the Clerk of Courts for the jurisdiction in which you are filing usually provides forms of complaints and summonses that can be filled out and filed. For example, in Franklin County, the Clerk has Small Claims forms at http://smallclaims.fcmcclerk.com/home/court-forms. Be sure to make enough copies of the summons and complaint to file an original, serve one on each defendant, and maintain extras for your files.

The complaint must include (1) your name, address and telephone number; (2) the name and address of the person or entity you are suing (the “defendant”); (3) the nature of your claim against the defendant, including dates and other relevant information; and (4) the amount of money damages you are claiming.

Persons filing small claims lawsuits (“plaintiffs”) should be sure to use the correct legal name of the persons or entities being sued (“defendants”). Correct entity names may be available from the Secretary of State’s Office. Similarly, if you are suing the owner of an unincorporated business operating under an assumed name such as a sole proprietorship, general partnership, or professional services corporation you can find out the name of the owner by checking the assumed name registrations. Note that the defendant’s address may be his/her place of residence, or place of business or regular employment.

If the small claim arises out of a contract or another type of document, copies of the contract or document must be attached to the original and all copies of the complaint unless the plaintiff attaches an affidavit stating that it is unavailable. Copies of other important documents, such as bills or receipts also may be attached.

Pay special attention to several points:

  • When you state the amount of your claim, consider whether you want interest on any judgment and reimbursement for all court costs. If you do, be sure your complaint asks for damages, interest on your damages, and reimbursement of all court costs, including those incurred in enforcing a judgment (i.e., in getting payment from the other party). Note that Ohio law does not permit you to recover wages for time lost for preparing or filing your case or for appearing in court.
  • Find out whether the defendant is on active military duty: federal law provides protection for those who are on active duty, and the court will ask about the defendant’s military status.
  • The court must officially notify the defendant that he or she is being sued, and it is your responsibility to provide an address where the defendant can be reached (see below).

How much does it cost?

Each court has established a filing fee. Call the court and ask what the fee is. If you plan to subpoena a witness, ask for information about the costs required.

If you cannot afford these fees, you may file an affidavit of indigency with the court and ask that your fees be waived. Court staff can provide you with instructions for how to file such an affidavit. The court will let you know whether your affidavit was accepted. If the court is satisfied that you cannot afford these fees, you may file without fees. But if the court is not satisfied, you will need to pay the fees.

Generally, you may be able to recover all of your out-of-pocket court fees, together with interest, if you win your case. Be sure to ask for reimbursement of your court costs along with your demand for recovery of your damages and interest

How is the defendant given notice of the small claims lawsuit?

The filing fee and complaint must be accompanied by a summons. The summons must require each defendant to file in court an “appearance” on a day specified in the summons. At the time the summons and complaint are filed, you may pay the clerk a fee per defendant served plus the cost of mailing and furnish the clerk an original and one copy of the summons containing an affidavit stating the defendant’s last known mailing address, and one copy and an original of the complaint. The clerk will then mail the forms, certified mail, return receipt requested. The return receipt when delivered back to the clerk, if it shows that the summons and complaint were delivered according to state and local rules prior to the date the defendant is ordered in the summons to file an appearance in court, constitutes proof of service.

How must a defendant respond when served with a summons and complaint in a small claims lawsuit?

If you are served with a small claims complaint and you neither deny the claims nor the amount of damages the plaintiff seeks, you should contact the plaintiff and attempt to resolve the matter out of court. Otherwise, you can simply admit the claims and have a judgment entered against you. The former course is generally seen as preferable, to avoid the public record of a judgment against you.

If you dispute the claim or the amount of damages requested, you must respond to the complaint by filing an “Appearance.” The Summons will specify a “return date” and the defendant must on that day file the written Appearance and pay an appearance fee with the Clerk of Court at the address checked on the Summons. Appearance forms are generally available either at the clerk’s office or, as with complaints, online at the Clerk of Courts website.

The case will not be heard in court on the return date. When the defendant files the Appearance and pays the fee, the clerk will give notice of the first court date. It is on that day that the defendant must appear in court.

If the defendant fails to file an appearance and pay the required fee on the return date, a judgment by default may be entered for the relief requested in the complaint.

Can a defendant assert a claim against the plaintiff or anyone else?

If you are sued in small claims court and you claim that the plaintiff owes you money as a result of the same transaction or events that are raised in the complaint, you may file a “counterclaim” against the plaintiff. This is done by filing a small claims complaint and delivering it, along with the filing fee, to the clerk. A summons is not necessary for a counterclaim, but a copy must be served on the plaintiff, either by mail or by hand, with proof of service. The plaintiff’s complaint and defendant’s counterclaim will be heard at the same hearing.

If you have been sued and you believe that a third party bears some or all of the liability claimed by plaintiff, you may also file a “third party claim” against that party. This requires a small claims summons and complaint filed in the manner set forth above. You should use the same caption and case number as in the complaint against you, and simply add to the caption the fact that you are a “third party plaintiff” and that the person or entity you are suing is a “third party defendant.” The clerk should be able to assist you and answer any questions.

How will I know if the Complaint has been served on the defendant and if the defendant has appeared?

Once the defendant files the Appearance form, the defendant must send a copy to all parties named in the case (or their attorneys) either by regular mail, fax, or personal delivery. If you are a plaintiff and have not received a copy of a defendant’s Appearance form within a few days of the return date, and in no event more than a day or two before the scheduled court date, call the clerk of the court to determine whether an Appearance has been filed. Even if the defendant has missed the deadline, you should still be prepared to present your case at the date set for a court appearance in order to obtain a default judgment.

How should the parties prepare for a small claims court hearing?

In preparing your case, you should keep in mind that the goal is to present proof that is more convincing than your opposition’s. We recommend the following preparatory steps:

  • Make a detailed list of what happened so the facts are clear in your mind.
  • Gather all documents, notes, receipts, pictures, or other physical evidence that you need to prove your claim.
  • Determine if any witnesses will be helpful to your case and, if so, ask them to appear at your trial. If they will not voluntarily appear, you may choose to “subpoena” their attendance at the trial. Subpoena forms are available either at the clerk’s office or at the Clerk’s website. Note that written statements from witnesses may not be admitted at trial. If a witness is crucial to your case, that witness must be in court.
  • If you are suing on the basis of defective merchandise or faulty services, it may be helpful to have an expert witness testify on your behalf at trial. In a case where an expert might be useful, you should have the expert evaluate the facts of your case before trial, and if the expert agrees with your position, make sure he or she is available on the date of the trial.

In addition, since your court appearance will involve an oral presentation of your story, it is helpful to go through your presentation several times in advance, until you feel comfortable. It also may be useful to have someone not familiar with the facts of the dispute listen, ask questions, and then critique your presentation. This person can tell you if your explanations are sufficiently clear, forceful and convincing, and can help prepare you for difficult questions that the judge or your adversary may ask.

If you have never appeared in small claims court, you may benefit from attending court hearings in other cases as part of your preparation, just to get a sense of how the trials are conducted. The clerk’s office should be able to tell you when trials are scheduled.

Note that the usual forms of “discovery” in civil lawsuits such as depositions, written interrogatories, or requests for the production of documents are not available in small claims actions without first obtaining a court order permitting them. You should gather the necessary materials yourself, and should not expect that you will be able to obtain them from your adversary.

What is mediation?

In nearly all of the larger courts, and in many of the small courts as well, the court will make available a mediator to assist you and the other party to try to work out a settlement. The mediator is not a judge and will not decide your case or give you legal advice.

A mediation hearing is a court-supervised conference where the plaintiff and defendant are given an opportunity to discuss all aspects of their dispute and to settle it without having a formal court hearing about the legal claim. Mediation hearings are confidential. If the mediation fails and the case proceeds to a formal court hearing, the information revealed in the mediation may not be used in court.

Take full advantage of the opportunity to participate in a mediation hearing. Mediation hearings are less formal than court hearings and can consider a broader range of issues surrounding the legal claim: it may be the only chance you have to air all of your concerns, to hear the concerns of the other party, and to come to an agreement that concerns issues other than the money one party may owe another.

Through mediation, you may arrive at a solution that better suits your needs than a court-imposed judgment.

Mediation is generally available at several stages of the case: you may be able to have a court mediation hearing before you file the case, and you may be able to schedule a mediation up to and including the day of the court hearing. Some courts require you to appear at a mediation hearing. Check the local rules of your court, and ask if you are uncertain.

What if the claim is settled before the hearing?

If you have filed a small claim, and the defendant pays you an agreed upon amount to settle your claim, you should notify the court in writing. Be sure to ask the court whether you need to fill out a specific form or can write your own statement noting that your claim has been settled. Your written notice of settlement will be made part of the record and your case will then be dismissed.

Note that the court will not return any fees or other court costs that you have paid. Any settlement you agree to with the defendant should be made with consideration given to these fees.

If you have been sued, and you have made an agreement with the plaintiff that you believe settles the entire claim, ask for written confirmation from the plaintiff and for a copy of the notice of settlement as filed with the court. If you have not received a notice from the court that your case has been dismissed before the scheduled hearing date of your case, contact the court to make sure that your case has indeed been completely settled and dismissed.

What happens when the parties appear in court?

Be sure to arrive at the courthouse sufficiently early to find the correct courtroom and organize your materials. The court may have other matters scheduled at the same time, in which case you may have to sit through other proceedings waiting for your case to be called. Take this time to observe courtroom procedures and etiquette.

When your case is called, the judge will typically ask the plaintiff briefly to summarize the nature of the lawsuit and then ask the defendant if they admit or deny the allegations made and/or the amount of damages that the plaintiff is seeking. If the defendant admits liability and agrees to a damages amount, judgment will be entered for the plaintiff.

If the defendant denies the claim or disagrees with the amount of damages that the plaintiff claims to be entitled to, then the court will set the case for trial. The trial may occur immediately, or be set for later in the day or on some future date. Both parties should prepare for this initial hearing as though the trial will occur on that day. That means bringing any evidence or witnesses to the hearing and being prepared to argue your case. While the court may grant a party’s request for “continuance” to another date if that party is not ready to proceed on the hearing date, the court has the discretion to deny such a request.

One thing is clear. If you fail to attend on the date of the hearing, the court may dismiss your case (if you are the plaintiff), or enter a judgment against you (if you are the defendant). This is not something you can miss with impunity.

What happens at the trial?

The plaintiff is given the first chance to present his or her case. This means telling in an orderly fashion the plaintiff’s side of the story, including presenting any evidence and/or witnesses. When the plaintiff has finished, the defendant will then have the opportunity to present his or her side of the story, including evidence and witnesses.

The judge may choose to relax some of the formality typically associated with trials, and may ask questions of the parties or witnesses. After both sides have presented their cases, a decision will be rendered. If either party has demanded a jury (and paid the proper fee), jurors will make the decision. Otherwise, the judge will decide.

What happens if I win?

If you are the plaintiff and win the lawsuit, a “judgment” will be entered in your favor and against the defendant in the amount awarded by the judge or jury. A judgment is a document signed by the judge and given an official court stamp that states the amount you are owed. Your opponent is not obligated to pay you immediately. However, interest begins to accrue immediately at an annual rate set by statute.

Obtaining a judgment in your favor and actually collecting the amount owed from the defendant are two separate things. If after 30 days you have not been paid and the defendant has not filed a post-judgment motion or appeal (see below), you may bring what are known as “collection proceedings.” Since this area of the law is complex, you may want to retain an attorney to assist you.

If you are the defendant and you win, judgment will be entered in your favor indicating the dismissal of the claim against you. You also may seek from the court your “costs,” such as filing fees. In certain situations, attorneys’ fees are also recoverable.

What happens if I lose?

If you are the plaintiff and you lose the lawsuit, your complaint will be dismissed and you will not recover any damages. The court may also order you to pay the costs or attorney fees incurred by your adversary. If you lost because your evidence was not sufficiently convincing, then it is unlikely you will be able to raise the matter again in court. On the other hand, if you lost due to a “procedural” mistake (for example you did not properly serve the defendant), it may be possible to correct the error and seek another hearing.

If you are the defendant and you lose, a “judgment” will be entered against you in the amount awarded by the judge or jury. A judgment is a document signed by the judge and given an official court stamp that states the amount you owe the plaintiff. While you are not obligated to pay on the spot, interest begins to accrue immediately at an annual rate set by statute.

The judge may ask you to agree to a payment plan or schedule. You should be careful about this. If such a schedule is entered in a court order, then any violation of the schedule would be a violation of a court order, meaning you could be held in contempt of court.

If your financial situation makes it impossible to satisfy the judgment, you should let the judge and the plaintiff know and seek an accommodation. If you are ordered to make payments notwithstanding any hardship, you should be aware of “exemption rights,” which exclude certain property and income from judgment for persons below a certain income level. The nature of exemption rights is complex; you should seek information from consumer or legal aid organizations.

What can I do if I think the decision was wrong?

If the magistrate rules against you and you want to challenge the magistrate’s decision, you will need to do the following:

  1. Immediately, while standing in front of the magistrate, ask him or her to prepare a report on the decision.
  2. Check with the Court Clerk to find out when the report has been completed and filed.
  3. Within 14 days of the filing of the report, you must file an objection with the court detailing why you believe the magistrate was wrong.
  4. Mail a copy of your objections to the other party in the case.
  5. If you disagree with the magistrate’s determination as to what the facts are in your case, you must file a transcript of the proceedings with your objections. However, a transcript can be costly.
  6. Once filed, a municipal or county court judge will review the case along with your objections and make a ruling.

At the hearing on the motion, you should be prepared to explain why the prior decision was wrong. If the judge grants your motion, the matter may be set for another trial. If the judge denies your motion, then you may file an appeal.

If you choose to file an appeal, either directly after the trial or after an intervening motion to reconsider has been denied, you must file a notice of appeal within 30 days of the decision you are appealing from. If you filed a motion to reconsider and lost that motion, you have 30 days from the date of that decision. You may want to consult an attorney about whether to appeal and, if you choose to do so, to assist in the appeal.

 

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Watch Out for the Dotted Line!

Watch Out for the Dotted Line!

This week, the Ohio Sixth District Appellate Court in Toledo dismissed a consumer’s appeal after he claimed he was convinced to sign a consent agreement with the property owner through fraud because he had entered into a contract that barred his case. The lesson to learn from the Sixth District is to be aware of what you sign and how it can affect you into the future.

Charles Hanson was living in a house when Flex Property Management purchased it at a sheriff’s sale. Flex Property gave notice to Mr. Hanson to leave the property, and was directed to vacate by the end of February 2015.  Mr. Hanson, representing himself pro se, entered into settlement agreement with Flex Property outside the courtroom. In exchange for $1000 cash, receiving a pre-approval letter from the bank, and an appraisal on the home, Mr. Hanson was permitted to stay in the house and make an offer to purchase. Mr. Hanson signed a consent judgment in April 2015 that was sent along with a drafted purchase agreement for the property.

However, when the two sides returned to the court, Flex Property filed the consent judgment and, according to Mr. Hanson, this showed that Flex Property had no intention of allowing him to purchase the property. With the consent judgment duly filed, the court informed Mr. Hanson that he would be removed from the house on May 30, 2015. Mr. Hanson appealed the court’s order.

The Sixth District court dismissed Mr. Hanson’s appeal.

The key issue identified by the Appellate Court is that a consented judgment entry or settlement agreement is a binding contract between the parties. Generally, one cannot appeal a contract. Since Mr. Hanson did not expressly reserve the right to appeal in the terms of the consent agreement, he was barred from contesting the judgment in that fashion.

Since the fraud that Mr. Hanson alleged to Flex Property occurred outside the courts, there is no evidence of it on the record. As such, Mr. Hanson could not argue the fraudulent inducement claim in a direct appeal either. Instead, the Sixth District instructed that Mr. Hanson would have to petition the court to set aside the judgment under Ohio Rule of Civil Procedure 60(B) and make that case to the trial court. This is a more difficult process than a direct appeal.

Realize that when you sign something, you are likely forming a contract with the other party. Mr. Hanson represented himself and entered into two contracts with Flex Property: the settlement agreement & the consent judgment. Without realizing it, he had given up some of his rights and limited his options for the future.

A contract does not need to be a formal document that reads “Contract” at the top, or have “Wherefores” and “Therefores” sprinkled throughout. If the essential legal elements of a contract (offer, acceptance, and consideration) are met, the court will likely deem an agreement a legally binding contract.

Before you sign anything, ensure that you understand the consequences of each term and element. If you are across from a bank or property management company, you know they have had their attorneys make sure their rights and options are well protected. The 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.

 

Read the decision [Capital Income & Growth Fund, L.L.C. v. Hanson, 2016-Ohio-2973]

 

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Racketeering Lawsuit over Robo-Signing Can Proceed

Racketeering Lawsuit over Robo-Signing Can Proceed

Yesterday, a federal appeals court ruled that a RICO lawsuit against Bank of America, its law firm, a law firm employee, and MERS could proceed.

The United States Court of Appeals for the Sixth Circuit ruled that a Racketeer Influenced and Corrupt Organizations Act (“RICO”) lawsuit could proceed against Bank of America, NA (“BANA”), Mortgage Electronic Registration Systems, Inc. (“MERS”), the law firm of Lerner Sampson and Rothfuss, and one of the law firm’s paralegals, for illegal robo-signing in an earlier state court foreclosure action.

The homeowner sued the four entities alleging that the law firm submitted a robo-signed mortgage assignment in an earlier foreclosure knowing that document was fraudulent. The lawsuit alleges that the law firm acted for BANA when it used that mortgage assignment to establish BANA’s ability to foreclose on the homeowner’s home, despite knowing the document was false. The lawsuit included multiple examples of this particular paralegal signing mortgage assignments on behalf of defunct companies, in what has become known as “robo-signing.”

During the foreclosure case, judgment had been taken against the homeowner without him realizing the problematic documents. Only after the homeowner retained Doucet & Associates Co., L.P.A., who brought the robo-signing to the court’s attention, did BANA and LSR vacate the judgment and dismiss the foreclosure. Bank of America dismissed on the eve of the paralegal, Shellie Hill, having to appear and give testimony under oath about the mortgage assignment.

After the foreclosure lawsuit was dismissed, the homeowner filed a federal lawsuit alleging several causes of action against all four parties. The district court judge initially dismissed the lawsuit, but today’s landmark decision by the federal court of appeals reinstated the most serious of the allegations. The lawsuit against BANA, MERS, LSR, and Ms. Hill will now continue under the federal racketeering statute, the Racketeer Influenced and Corrupt Organizations Act, a law initially designed to prosecute mob activity.

The case is Slorp v. Lerner, Sampson, and Rothfuss; Bank of America NA, Shellie Hill, and Mortgage Electronic Registration Systems Inc, Case No. 13-3402, and is available here: http://www.ca6.uscourts.gov/opinions.pdf/14a0745n-06.pdf

Call Doucet & Associates Co., L.P.A. for more information or to help with your case at (614) 944-5219.

 

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Firm Wins Major Appellate Decision

Firm Wins Major Appellate Decision

Doucet & Associates is happy to announce it won a major case in the federal court of appeals yesterday, paving the way for consumers to be able to hold their mortgage companies accountable for failing to adequately respond to mortgage inquiries.

The firm’s client, Christine Marais, faced years of trouble trying to get her mortgage company to correctly apply her mortgage payments when she sent in more than the amount due.After trying repeatedly to get Chase Home Finance to correctly apply her overpayments, she retained Doucet & Associates in an attempt to hold it accountable.The law firm sent a formal written request to Chase pursuant to the federal law, the Real Estate Settlement Procedures Act (“RESPA”), demanding that Chase provide certain account information and that it correct her mortgage account.

Rather than making any corrections to Ms. Marais’ account in response to the firm’s formal demand, Chase’s representative testified in a deposition that it used a form letter to respond to the inquiry, and that letter contained no indication that any substantive review was undertaken of her account.

Chase Home Finance filed a motion with the trial court to win the case based on its outrageous claim that Ms. Marais could not show she suffered damages.The federal appeals court disagreed with Chase, and found Ms. Marais had properly alleged damages, and that she stated a claim to recover for Chase’s failures.The case now goes back to the trial court for further litigation.

The decision, Marais v. Chase Home Finance, LLC was decided by the United States Court of Appeals for the Sixth Circuit and was recommended for publication as binding law throughout the federal court system encompassing Ohio, Michigan, Kentucky, and Tennessee.To the firm’s knowledge, this would be the first appellate level published case on this particular RESPA issue, meaning it will be persuasive authority throughout the United States.

 

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Behind the Ibanez Case

Behind the Ibanez Case

In ruling that U.S. Bank and Wells Fargo had to own mortgages before foreclosing on them, one judge put an end to a two-year saga that left two families without their homes. While the banks tried to convince Massachusetts Land Court Judge Keith Long that the foreclosure sales the banks held in 2007 were valid, Antonio Ibanez and Mark and Tammy Larace’s homes sat empty and deteriorating pending the lawsuits outcome. Over two years later, the Ibanez and Larace’s homes are back in their possession, but with an uncertain future ahead, despite the favorable ruling by Massachusetts Supreme Court.

When the economy worsened, Antonio Ibanez and Mark and Tammy Larace stopped being able to afford their mortgage, and knew it was only a matter of time before their home would be lost to foreclosure. After trying to prevent the inevitable, they received notice that their banks would sell their homes on July 5, 2007. Because Massachusetts permits foreclosure by notice, the banks did not need to receive court permission to foreclose, nor did they seek it. Instead, the banks were able to provide notice in the local newspaper of the foreclosure three weeks before the sale, and then sell the property at auction.

Without means to stop the foreclosure sales, the banks sold each property on schedule in 2007. No one bided on the homes except U.S. Bank and Wells Fargo. U.S. Bank bought Ibanez’s home for $16,437 (15%) less than the appraised value; Wells Fargo bought Larace’s home for $24,602 (17%) less than the appraised value.

Most mortgage loans are no longer lent and held by a local bank, determining who has ownership rights to the any particular loan at any given time becomes difficult and confusing. Banks buy and sell pools of loans regularly, sometimes bundling them with thousands of others to be sold off in chunks by Wall Street. Here, that is what happened to Ibanez and Larace’s loans. Their loans were bundled and sold as part of a security, meaning ownership had transferred multiple times and ended up in a trust. Unfortunately for the banks, however, they did not update their paperwork to show the proper transfers before the foreclosure. Without the proper paperwork, U.S. Bank or Wells Fargo could not prove they had the legal right to order the foreclosure sale. Because the banks did not have the proper paperwork, they could not prove they were the actual mortgage owners, so neither could establish its right to conduct the sale. This means neither bank could obtain title insurance through a title company.

Picture the banks’ problem this way. If you lent John money, and then he stopped paying you, you would have the right to sue him. However, you are the only person with the right to sue him. Your cousin Sally would not be able to take John to court to collect on your loan, nor could she collect on your loan and keep the money for herself. In order for Sally to have that legal ability to sue for you (called having “standing”), you would have to give Sally some legal right. You could either ask Sally to act on your behalf, or sell the loan to Sally so she could sue in her own name. Only when the loan belongs to Sally (or she has your permission) can Sally sue.

The same concept is at work here. U.S. Bank and Wells Fargo were not the original lenders on the Ibanez and Larace’s loans. Instead, other banks owned the mortgages, and never properly sold (assigned) their interest to U.S. Bank and Wells Fargo before those banks foreclosed on the property. Thus, U.S. Bank and Wells Fargo, like Sally, could not show they were the rightful owners of the mortgages and the banks with the power to foreclose. This caused a serious problem for U.S. Bank and Wells Fargo because without standing, they could not legally foreclose or sell the properties.

Without the legal right to foreclose on the properties, the banks did not have the legal right to sell the properties at auction. Without that legal right, the rights of any purchaser of the property would also be tarnished. Think of it in terms of buying a stereo system you know was stolen. Because the thief stole the stereo (he did not have the right to sell it), your ownership is also void – even though you paid the thief money for it. Just because you pay for the stereo does not mean you have ownership rights to it, if the seller never had legal authority to sell it to you. Similarly, if the banks take and sell homes without the legal right to do so, the buyer’s ownership rights will also be tarnished.

Here, the banks were both the seller and the buyer of the tarnished homes, raising serious questions about the legitimacy of the foreclosures and sales. The ownership problem was so big for the banks that title insurance companies would not issue policies on the Ibanez and Larace properties. Title companies issue insurance that covers property owners from losses associated with faulty property ownership chains. If the title company is not comfortable that the foreclosure was proper, and refuses to issue title insurance, then the value of that property drops significantly. After all, no one wants to buy a house from someone that cannot establish they actually own it.

Faced with the prospect of having two nearly worthless properties, U.S Bank and Wells Fargo sue for a court order blessing their foreclosure procedures. The banks could have gathered their paperwork establishing their rights to foreclose, which would mean obtaining “assignments” of the mortgage that showed an unbroken chain of ownership from the original lender to them. However, instead of gathering that paperwork so they could correctly foreclose on the properties, the banks filed a lawsuit asking the court to rubber stamp their shoddy procedures. With such an approval, the banks could then continue to take people’s homes without gathering the necessary paperwork first. Needless to say, the court told the banks to pound sand. The judge did not buy the banks’ arguments in his March 2009 decision, finding that without proper proof of ownership before the foreclosure sale, the banks could not meet the minimal legal requirements necessary to take and sell the homes. The judge noted that beyond Massachusetts’s minimal requirements that require the bank show ownership before the sale, a production of corrected documents after the sale do not fix the problem.

Neither bank was happy with the judge’s decision, and filed documents asking him to change his mind. The banks produced extra documents that they claimed demonstrated their actions were legitimate, including complex securitization documents. After reviewing those documents, the judge again denied their request, finding that “lawsuits are a serious matter and are not a place for ‘do-overs.’” He also found that the additional documents actually offered more proof the banks’ actions were illegal and that his original ruling was correct.

The judge’s order invalidated U.S. Bank and Wells Fargo’s foreclosures against the Ibanez and Larace properties. Both families are back in possession of their homes after two years of sitting empty, and the Massachusetts Supreme Court may have just paved the way for them to stay there. However, despite the favorable Supreme Court ruling, final resolution of these foreclosures is uncertain. While the court’s decision paves the way for each family to sue their bank for wrongful foreclosure, there is still a lingering question about which bank actually owns the mortgage and whether some other lender can appear with the correct documents to foreclose.

What has happened since then is the question?

 

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