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How to Stop a Sheriff’s Sale in Ohio

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.

Are You Struggling to Pay Off Your House? A Loan Modification May Help

Are You Struggling to Pay Off Your House? A Loan Modification May Help

Doucet & Associates is a foreclosure defense and consumer litigation law firm in Ohio that focuses on helping homeowners save their home from foreclosure...

Are you struggling to pay for your legal help?

Are you struggling to pay for your legal help?

There are many legal services in Ohio that help people with little or no income. There are pro bono attorneys, organizations where lawyers volunteer their time and services, and legal student services that you could use for a discounted rate or free...

Dealing with Foreclosure? Watch Out for a Deficiency Judgment

Dealing with Foreclosure? Watch Out for a Deficiency Judgment

A deficiency judgement is the difference between what you still owe on your home in foreclosure and how much the home sold for at a sheriff sale or short sale...

How can you protect your home and other assets when you go active duty?

How can you protect your home and other assets when you go active duty?

The Servicemembers Civil Relief Act (SCRA) protects active duty military personnel and other deployed service members from losing their home and other assets while they are serving active duty, temporarily stationed somewhere else, or permanently relocated...

Meet Our New Associates

Doucet and Associates is pleased to announce and welcome Sean Kohl, Alex Keen, and John Miller to our team as associates. As a firm, we are very excited to have them join our team and are confident they will make a positive impact on our clients. Sean M. Kohl, Esq...

Are You Renting a Property in Foreclosure?

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.

Foreclosure Lawsuit Reactivated Due to Suspected Fake Documents

Rick Slorp alleges that BAC Home Loans Servicing, L.P. and its attorneys at Lerner Sampson & Rothfuss LLP (LSR) created and submitted multiple fake versions of his promissory note to use as evidence against him in a foreclosure lawsuit.

New Flex Modification Program Will Replace HAMP

New Flex Modification Program Will Replace HAMP

The Home Affordable Modification Program (HAMP) that helps homeowners avoid foreclosure by adjusting interest rates and modifying loans expired at the end of the year. A new Flex Modification program will replace HAMP starting in 2017.

The new Flex Modification program is designed to cut back on monthly mortgage payments when homeowners are experiencing financial hardships and behind on their mortgage. Some homeowners are expected to receive up to a 20% payment reduction on their mortgage. Introduced by Fannie Mae and Freddie Mac, the Flex Modification foreclosure prevention program is supposed to be adaptive to regional differences and the ever-changing housing market.

Fannie Mae and Freddie Mac are government enterprises developed by Congress to help loan servicers convert assets to cash, a concept known as liquidity. To do this, Fannie Mae and Freddie Mac buy mortgages from lenders and loan servicers. The lenders then take the profit from selling the mortgages and relend it to other consumers buying a home or property. The government enterprises help lenders have an affordable supply of monetary funds to distribute in mortgage loans around the United States.

Flex Modification is expected to help lenders, homeowners, taxpayers, Fannie Mae, and Freddie Mac save money by avoiding the expensive and long foreclosure process. If you are having financial difficulties and struggling to pay your mortgage payment in full every month, a loan modification may be able to help you keep your home. Contact a foreclosure defense lawyer at Doucet & Associates Co., L.P.A. at (614)944-5219 for legal assistance securing a loan modification today.

 

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Are You Getting Your New Home Inspected?

Are You Getting Your New Home Inspected?

A home inspection is a crucial step in the home buying. After an offer is accepted in the home buying process, the contract usually details how much time a new homeowner has to get an inspection and negotiate repairs.

What to do before an inspection?

It is important for new homeowners to inspect inside and outside parts of the house for damage before the professional inspection.  The landscape, drains, grading and possible retaining walls should also be examined.  This will prepare a new homeowner to ask the inspector questions while attending the inspection. Inspections can last a few hours so do not feel bad about asking too many questions.

What should a new homeowner expect to learn in an inspection?

An inspection can inform new homeowners of electrical malfunctions, appliance life expectancy, plumbing issues, future repairs, and structural problems with the walls, roof, basement, ceilings, and the foundation. Inspectors can also offer advise on how to maintain a home and its unique features and machinery.

How to choose a home inspector?

Homeowners want inspectors that are experienced and detailed oriented. It is also important to ensure they have a bond or professional errors and omissions insurance. A Real estate agent can suggest an inspector, but homeowners should still do their own research. Ohio does not have a law that requires home inspectors to have a license. There are however certified programs and classes inspectors may take. Asking relatives and friends who own homes for recommendations, checking websites, and reading reviews can help make a homeowner feel confident about choosing an inspector. Researching early on in the home buying process can help a homeowner secure a preferred inspector.

How much does an inspection cost?

An inspection may cost anywhere from a few hundred to a thousand dollars. It is important to verify with the inspector everything that is included in an inspection package and ask for a sample report. The more detailed the report the higher the cost. The larger landscape, drains, grading and retaining walls could raise the cost of the inspection. Home inspectors are usually not licensed to give advice regarding pest control, chemicals or gases, so hiring a professional in a more specific area may be needed.

The lawyers at Doucet & Associates Co., L.P.A. can help homeowners in a consumer litigation lawsuit if a home inspector failed to provide promised information. Contact us at (614)944-5219 today or send us a message on our website by clicking here.

 

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Mobile Home and Manufactured Rights

Mobile Home and Manufactured Rights

Rental agreement laws are put in place to protect tenants who lease a mobile or manufactured home. Lawyers at Doucet & Associates Co., L.P.A. can offer legal assistance to tenants whose park operators fail to comply with these laws.

A mobile and manufactured home parks rental agreement or lease must abide by certain requirements and include specific policies. Leases must be signed and completed by tenant and landlord before to moving in. The landlord must offer a minimum length of stay of one year and must offer renewal for when the term ends. The property owners name and address must be provided to the tenant and all rules associated with the park must be listed. A landlord must also state all fees and charges including monthly, extras, and for damages the tenant may cause.

A tenant is not required to purchase the rental property at the end of the lease. The agreement cannot modify the tenant rights or remove the landlord from liabilities or obligations. Landlords are obligated to keep the property sanitary and habitable and repair appliances and utilities. Landlords also have to give tenants a 24 hour notice before entering a leased property. A violation of these tenant rights may result in a lawsuit where damages are recovered and attorney fees are paid by the landlord. Contact Doucet & Associates Co., L.P.A. today at (614)944-5219 to verify if your tenant rights are being violated.

 

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Save the Dream Ohio Restarts

Save the Dream Ohio Restarts

Save the Dream Ohio is a federally funded program that keeps families experiencing job loss from falling into foreclosure. The program started taking applications again in September for homeowners receiving unemployment benefits since January 1, 2014. The lawyers at Doucet & Associates Co., L.P.A. helps homeowners fight foreclosure by securing loan modifications and by finding mortgage errors, which can include Save the Dream foundation applications.

Save the Dream Ohio started in 2010 and helped over 20,000 families pay mortgage liabilities with forgivable loans. The program assists families by making mortgage payments for up to 18 months depending on the severity of the financial situation.  The program may also pay missed mortgage payments, property taxes and fees, and reduce the principal balance on a mortgage. Before the program halted two years ago an estimated 98% of families helped continued living in their home.

The Ohio Housing Finance Agency (OHFA) manages the Save the Dream Ohio foundation by working with nonprofit housing counseling agencies. Families with an annual household income under $112,375 who owe less than $432,000 on a mortgage may qualify for help. Homeowners do not have to pay a fee to receive assistance.

The OHFA must receive approval from a homeowner’s mortgage company or lender to provide financial assistance. Homeowners can apply for assistance at www.SavetheDream.ohio.gov or by calling (888)-404-4674.

If you are not accepted into Save the Dream and facing foreclosure, the lawyers at Doucet & Associates Co., L.P.A. maybe able to help you apply for a loan modification or defend the lawsuit.

 

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Servicemembers Civil Relief Act (SCRA)

Servicemembers Civil Relief Act (SCRA)

The Servicemembers Civil Relief Act (SCRA) protects active duty military personnel and their immediate families from financial hardships and a variety of legal issues. The SCRA protects people involved in the United States armed forces, the national guards, public health services, and other administrative positions. Active duty personnel must request protection services from an armed forces legal assistance office.

Active duty personnel may request reduced interest rates on a mortgage, credit card, automobile loans, or other loans through the SCRA. Interest rates are reduced to at least six percent and are allowed to be applied to monetary obligations obtained before active duty. Credit reporting agencies and lenders cannot use approved SCRA reduced rates in a harmful way to lower a consumer credit score.

People receiving protection through the SCRA are not allowed to be evicted from a rental property without a court order. The average rental property that is protected under these rights are around 3,000 dollars a month and change a little every year. The SCRA also protects the right to judicial relief to postpone a civil court issue at least 90 days with court approval.  Active duty personnel may also request a civil court case to be reopened if failing to appear in court due to temporary relocation. Criminal court proceedings are not protected under judicial relief.

People selected for active duty positions requiring deployment more than 90 days have the right to request termination of a property lease without penalties. Residential and business properties are protected and filing for termination can take place before leaving or during active duty if extended. Termination of a car lease is possible if active duty position requires deployment for 180 days.

If an active duty position effects a person’s ability to pay mortgage rates on a housing contract, the SCRA can provide legal assistance to keep a property from foreclosing. Mortgage companies must receive a court order to file foreclosure on the home of military personnel involved in active duty. Automobile companies must also receive a court order to repossess a vehicle for missed payments.

Military personnel required to move from their home state is provided state tax relief under the SCRA. A person may request to continue paying the taxes of their home state on military income and personal property. Military personnel are also allowed to reinstate cancelled insurances without penalties after ending an active duty term. Insurances may include health insurance, life insurance, home insurance and other plans.

Doucet & Associates Co. L.P.A. in Ohio helps people enforce rights based on the SCRA. Please contact us today if you or someone you know needs help.

 

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Door to Door Solicitations

Door to Door Solicitations

A company selling goods or services to a consumer outside the company’s regular place of business and inside a buyer’s home is considered a home solicitation sale. In Ohio, there are laws to protect consumers involved in these types of business transactions which could result in damages for buyers and penalties for a company if it fails to comply. These laws include details about information the consumer must be provided with, the right to canceling a purchase and misrepresentation.

A company must provide their business’s name and address when contracting a sale solicited in a consumers home. The contract must also include information regarding the language used to make the sale and provide a copy of the contract to the buyer. This contract should include the buyers signature, the date the agreement was made and two copies of the notice of the buyer’s right to cancel the purchase. In Ohio specifically, the buyer is granted a three day right to cancel. The seller must orally notify the buyer of their right to cancel a purchase and refund all payments within 10 business days of cancellation. Also, services may be withheld until after the cooling off period has expired.

Misrepresenting the goods or services being sold by the seller is also an important concept of the buyer’s rights. The seller must make it clear that their intention is to make a sale. There cannot give any false or misleading information including that the buyer has been specially selected to receive a bargain, won a contest, or that the product cannot be sold in stores. Declaring there is no right to cancel is also an illegal and they cannot take on the authority to negotiate the final terms of the sale.

Doucet & Associates Co. L.P.A. in Ohio helps enforce rights regarding home solicitation sales. Please contact us today if you or someone you know needs help.

 

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A Mortgage Servicer Must Show Compliance with Housing and Urban Development Regulations Prior to Initiating Foreclosure Action

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.

 

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Banks Must be Cautious with Conditions Precedent: the Alliterative Way to Defend against Foreclosure

Banks Must be Cautious with Conditions Precedent: the Alliterative Way to Defend against Foreclosure

Put simply, foreclosure is a contractual remedy to a breach (i.e. default) on a note that is secured by a home. Thus, in order for the bank to succeed in a foreclosure action, it must prove the elements for a breach of contract. In Ohio, to prevail on a breach of contract claim, the plaintiff must prove:

 

  1. The existence of a valid contract;
  2. That the plaintiff performed their obligations under the contract;
  3. That the defendant did not perform their obligations; and
  4. Injury resulting from the defendant’s breach.[1]

 

Conditions precedent stem from the second prong. Many notes or mortgages will require notice of a default and/or acceleration. If a note or mortgage has such a notice clause, the lender must comply with the notice terms or the complaint may be dismissed.[2] Further, certain federal regulations issued by the Secretary of Housing and Urban Development (HUD)[3] may impose additional requirements on the party seeking a foreclosure.

In BAC Home Loan Servicing, LP. v. Taylor, the Ohio Ninth District Court of Appeals held that the bank’s failure to comply with HUD’s regulations could be successfully used as a defense against a foreclosure action.[4] The Taylors’ note and mortgage were subject to the HUD regulations for default and acceleration, and on appeal, they submitted affidavits that no attempt had been made for the required face-to-face meeting, while conversely BAC offered no contradictory evidence.[5] Thus, the court reversed the trial court and found a genuine issue of material fact as to whether BAC had performed all conditions precedent in order to continue with foreclosure.

This ruling is in line with many other Ohio appellate courts[6] and stands for the notion that the foreclosing party must comply with all of the conditions of the note and mortgage contract, or the homeowner may successfully defend against the foreclosure action.

[1]Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081.

[2] Fifth Third Mtge. Co. v. Bell, 2013-Ohio-3678.

[3] See 24 C.F.R. §203.604, which requires a face-to-face meeting or a reasonable attempt for a face-to-face meeting prior to foreclosure.

[4] BAC Home Loan Servicing. LP v. Taylor, 2013-Ohio-355.

[5] Id. at ¶ 21.

[6] See Wells Fargo v. Phillabaum, 192 Ohio App.3d 712, 2011-Ohio-1311, ¶ 11 (4th Dist.); Wells Fargo Bank, N.A. v. Isaacs, 1st Dist. No.C-100111, 2010-Ohio-5811, ¶ 10; U.S. Bank, N.A. v. Detweiler, 191 Ohio App.3d 464, 2010- Ohio-6408, ¶ 53 (5th Dist.); Washington Mut. Bank v. Mahaffey, 154 Ohio App.3d 44, 2003- Ohio-4422, ¶ 22 (2d Dist.)

 

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Can my old landlord hire a debt collector to sue me for moving out of my apartment early?

Can my old landlord hire a debt collector to sue me for moving out of my apartment early?

A debt collector is allowed to contact someone to collect on a valid debt.  Before determining whether a debt collector is allowed to contact someone in a particular situation, the underlying legal situation first needs to be evaluated.

When two people enter into a lease to rent an apartment, they usually sign a contract to be jointly liable to the landlord for payment of the rent.  If either party breaks the lease, then the landlord has the right to sue either party for recovery of all the lost rent.  That lawsuit can include late fees or other charges authorized by the lease.  The legal doctrine that allows a landlord to sue either tenant (or both tenants, at the choice of the landlord) is called “joint and several liability.”  Rather than suing, a landlord can appropriately place the account with a collection agency to collect on the unpaid rent.

A separate contractual relationship governs the relationship between tenants.  Usually, two people entering into a lease agree to split the cost, where each side agrees to pay a certain amount towards the total rent.  If one of the tenants stops making payments, then the other tenant has a claim for breach of contract against the non-paying tenant.  The paying tenant can even pay the entire rent due to the landlord themselves to prevent a breach of the lease, and then sue the non-payer for breaching their agreement to split the cost.

Assuming valid contracts exists, moving out of town is generally not a good enough reason to get out of a lease.  There is no requirement that the landlord agree to allow someone out of a lease early, and no requirement for the landlord to agree to shift all of the payment responsibility onto the other tenant.  There is also no requirement for the other tenant to agree to accept all the liability for the entire lease and allow the other tenant to move out early.  It would be pretty unfair to the roommate left behind to have to pay all of the money to the landlord each month when they entered into the lease thinking they would only have to pay half.  Thus, if one of the tenants moves out early, that person should not be surprised if they are sued by both the landlord and/or the other roommate for amounts not paid.

That all said, landlords have a duty to mitigate their damages by trying to rent out the property immediately after eviction.  They cannot wait around for months in order for their damages to compound and then sue for a much bigger number than if they took appropriate steps to lease the unit to someone else immediately.  In our Franklin County, Ohio, for example, landlords are generally only able to collect about two months of future rent as damages even if the lease had six months left on it.  The landlord can also sue for fees and costs allowed by the lease or allowed by the law.  That would require looking at local law, and raising failure to mitigate damages in the court case, probably through a lawyer.

One final note on the issue of whether a debt collector is acting appropriately.  A debt collector is only allowed to demand that amount of money which is actually owed and is bona fide and reasonable.  Thus, if the debt collector is adding fees or costs which are not allowed by the terms of the lease (or are prohibited by law), then the debt collector might still be liable under the FDCPA for collecting on an inflated debt.  That kind of lawsuit could wipe out the rent claimed as due and cover your attorneys’ fees, even if the balance of the underlying debt was otherwise valid.  An experienced consumer lawyer could help there, which is what we do.  Call (614) 944-5219 if you are in Ohio.

 

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If a Consumer Pays a Deposit as Part of a Consumer Transaction, the Supplier Must Have an Articulated Refund Policy

If a Consumer Pays a Deposit as Part of a Consumer Transaction, the Supplier Must Have an Articulated Refund Policy

William and Joan Layne, consumers as that term is defined in the Consumer Sales Practices Act, R.C. §1345.01, et seq., entered into a consumer transaction with Tru-Built Homes, Inc., to build a detached garage on their property.  The contract price of $7,196.00 was to be paid in three installments, with the first as a down payment at the time the contract was signed.  The contract went on to guarantee that the supplier would: “fix, replace, or repair any part that goes wrong, that is our fault, because of poor workmanship or faulty materials for one full year at absolutely no cost to the consumer.”

The concrete garage floor that was poured by the contractor did not conform to the contract’s specifications in that it did not align with the house.  The parties negotiated for several weeks, trying to resolve the non-conformity, without reaching an acceptable solution.  Finally, it was agreed that the contractor would remove and re-pour the pad.  A subcontractor started the task, but did not complete it.  Finally, the Laynes terminated the contract relationship, and filed litigation alleging breach of contract and violations of the Consumer Sales Practices Act, R.C. §1345.01 et seq.

A jury awarded damages of $6,277.00 on the breach of contract claim, but the trial court ruled against plaintiffs on the CSPA claim.  On appeal, the 2nd District reversed, finding that there was sufficient evidence in the record to find that the defendant had engaged in deceptive and unconscionable practices by accepting a deposit without articulating a refund policy, engaging in a pattern of inefficiency and incompetency, and failing to honor an express warranty, all of which have been held to violate the CSPA.

R.C. §1345.09(B) states that when a supplier in a consumer transaction has engaged in a deceptive or unconscionable act, a consumer is entitled to three times actual damages or $200, whichever is greater.  On remand, the lower court did not separate the breach of contract damages previously found by the jury from the CSPA violations damages, as the appellate court clearly contemplated, and simply trebled the jury’s finding of $6,277.00, totaling $18,831.00, as plaintiffs’ actual damages.  Defendants appealed again, and the appellate court agreed that damages were due and owing for the several CSPA violations but disagreed with the trial court’s basis for its finding of actual damages, so the court remanded that matter a second time for the trial court to re-examine each CSPA violation to fashion an appropriate damages award.

The 2nd District left alone the trial court’s award of attorney fees under the CSPA, reasoning that the supplier had knowingly committed the violation, which is enough to justify awarding attorney fees under R.C. §1345.09(F).  Quoting from the Supreme Court decision in Einhorn v. Ford Motor Co., (1990) 48 Ohio St. 3d, 27, 30, the appellate court stated that knowingly committing an act or practice “ ‘means that the supplier need only intentionally do the act…The supplier does not have to know that his conduct violates the [CSPA]. ’ ”   Id., at p. 6.  The trial court had held a separate hearing on attorney fees following the first remand, finding that $18,329.70 was a reasonable amount for plaintiffs’ attorney fees in the pursuit of their CSPA claims.

Layne v. McGowen, 2nd Dist. Case No. 16400, November 14, 1997

PIF #10001592: Decision under Consumer Sales Practices Act, R.C. §1345.01, et seq.

 

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National City Mortgage Company v. Richards: A case study in condition precedent as a foreclosure defense

National City Mortgage Company v. Richards: A case study in condition precedent as a foreclosure defense

National City Mortgage Company v. Richards: A case study in condition precedent as a foreclosure defense[1]

Before your mortgage company can initiate foreclosure proceedings and accelerate your debt they must meet any condition precedents required in the original agreement.  Most often these condition precedents come in the form of required prior notice of default and/or acceleration outlined by a provision in your note or mortgage instrument.  So what does this mean for you?  Basically it means that your mortgage company cannot take action against you without properly informing you of their intent to do so.  National City Mortgage Company v. Richards[2] illustrates the scenario well.  In that case, Richards argued that she never received notice of her default through first class mail as was required in her original agreement with the mortgage company.  Because of this oversight on the part of the mortgage company, Richards never had a reasonable opportunity to cure the problem.  The Tenth District sided with Richards and the Mortgage Company’s cause was dismissed.  If you believe you might have an issue with condition precedent or any other mortgage issue please do not hesitate to contact Doucet & Associates.

[1] By: Justin Potter, Of Counsel, Doucet & Associates Co., L.P.A.

[2] Nat’l City Mortgage Co. v. Richards, 2009-Ohio-2556, ¶ 1, 182 Ohio App. 3d 534

 

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