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.
Envision having human feces spread across your hair and body while trying on a shirt at a clothing store. Imagine the urge of vomiting and nausea overcoming your body as you smelled the disgusting odor and fear you would obtain from such a gross experience. That is exactly what happened to our client when she slipped a shirt over her head at a TJ Maxx clothing store.
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.
Can a debt collector call you during the holidays? It Depends
Getting a phone call from a debt collector during the holiday season can ruin your holiday spirit. The Fair Debt Collection Practices Act (FDCPA) restricts the actions of debt collectors, protects consumers, and punishes debt collectors with unruly, bad behavior. Troy Doucet, the firm principal here at Doucet & Associates Co., L.P.A., shares advice regarding the FDCPA and how to deal with unruly debt collectors during the holiday season in the article “Can a Debt Collector call you during the holidays?” in the Atlanta Journal-Constitution.
The FDCPA punishes debt collectors who contact consumers with repetitive, harassing behavior and restricts them from calling consumers at inconvenient times. Calling in the middle of the night or calling a consumer at work are typical examples of an inconvenient time, but holidays may also be arguable inconvenient and a violation of the FDCPA.
Under the FDCPA, consumers are allowed to send a written letter asking a debt collector to stop calling. After, the debt collector may contact the consumer one more time to inform them they plan to take legal action. If the debt collector continues to contact the consumer after the letter, then a consumer litigation lawyer at Doucet & Associates Co., L.P.A. can help determine if the FDCPA has been violated. Once a consumer has legal representation, the debt collector cannot contact the consumer directly without permission of the lawyer.
In Ohio, lawsuits dealing with the FDCPA allow fee shifting. This means if the lawyers at Doucet & Associates Co., L.P.A. can help you win a lawsuit against a debt collector for bad and unruly behaviors, the debt collector will have to pay all of our attorney fees for you. Contact an experienced lawyer at (614)944-5219 for your consultation today.
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.
Doucet & Associates 10th District Win for Church Client
Doucet & Associates Co., L.P.A. attorney, Andrew Gerling, maintained a $62,000 jury verdict in the 10th District appellate court for a local church. The church first received the $62,000 in damages in the Franklin County Common Pleas Court for a breach of contract over a commercial property.
The Fathers House International, Inc. purchased the commercial property with intent to build a new church. The Pastors of the church met with the defendant and modified the contract to keep monthly payments from rising after the first year. The Pastors and defendant also agreed the property could be used for other projects.
Later the church joined with the YMCA, the City of Columbus, and the Community Shelter Board and developed plans to operate a homeless shelter on the property. The defendant wrote a letter of confirmation for the church to lease the property and verified accurate payments had been received.
Despite the modification and letter, the defendant later went back on the deal by demanding more money than he was entitled to under the new contract agreement. Attorney Andrew Gerling first successfully defended the Fathers House International, Inc. in a breach of contract lawsuit and upheld the verdict during the appeal.
If you have had a foreclosure lawsuit unlawfully filed against you contact Doucet & Associates Co., L.P.A. at (614)944-5219 for legal assistance.
Doucet & Associates Co., L.P.A. Wins Lawsuit Against a Debt Collector
Doucet & Associates Co., L.P.A. won a lawsuit against Portfolio Recovery Associates, LLC for debt collection harassment and violations of the Fair Debt Collection Practices Act (FDCPA). Our clients sought out our assistance after Portfolio continued to notify them about their debts after they had legal representation and failed to show proper verification.
In 2015, Student Legal Services, Inc. helped our clients by sending a letter asking for verification for some of the debts Portfolio notified them about. Under the FDCPA, a debt collector cannot contact a consumer without permission once they have a lawyer involved.
Portfolio responded by sending a letter directly to our clients verifying another debt, not the debts requested. Portfolio continued to contact our clients by mail and eventually phone about various debts. Portfolio violated the FDCPA by continuing to contact our client’s after they had legal representation.
Portfolio admitted liability through an offer of judgement and paid our clients $2,001 in statutory damages due to collection harassment and violations of the FDCPA. In Ohio, FDCPA lawsuits that create statutes are also violations for a Consumer Sales Practice Act (CSPA) lawsuit and both allow fee shifting. Therefore, Portfolio is required to pay Doucet & Associates Co., L.P.A. reasonable attorney fees, rather than our client.
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.
Fighting Default Foreclosure Judgments in Ohio
Fighting a Default Foreclosure Judgment is a difficult task, but you have options.
If a court has entered an order on foreclosure against you recently, it is time to act. You may be able to either vacate or set aside the judgment, but your options are time sensitive. When it comes to motions to vacate and to set aside the judgment, trial courts can lose jurisdiction to help you if you do not act timely. One of the maxims of the law is “the law serves the vigilant, and not those who sleep on their rights.” This is especially true in post-judgment proceedings. When dealing with post judgment reconsideration, there are generally two methods that are useful at the trial court level (the court that entered the foreclosure judgment against you) – a motion to vacate based on a failure of the bank in bringing their case, and a motion to set aside the judgment and allow you to reenter the case based on certain criteria such as newly discovered evidence or excusable neglect. You are essentially asking a sitting judge to undo either the complete foreclosure judgment or a portion of what he or she entered.
Motion to Vacate a Foreclosure Judgment
If the bank has failed to follow the proper procedures and Civil Rules when they bring their case, the court can vacate the judgment. This means that the judge sets aside the judgment as if it never happened. If the bank wants to continue the foreclosure, they have to initiate a new case from the beginning. There are two main reasons that a court will vacate a default judgment: (1) excusable default and (2) lack of personal jurisdiction. Excusable has two parts: (1) a reasonable excuse for not filing an Answer within the 30-day time; and (2) a meritorious defense (a good defense).
Excusable Default: Common examples of a reasonable excuse are you were ill, incarcerated, or that you could not answer the Summons for some other good reason. You would also have a reasonable excuse if, in response to the Summons, you telephoned the attorneys for the plaintiff and they told you not to bother filing an Answer. A meritorious defense is a reason why you don’t owe the money, not a reason why you can’t pay. For example, you would like to use the defense of statute of limitations. You can also dispute the amount of the debt. Disputing the amount of the debt, combined with improper service, can be a sufficient reason for the court to grant an order vacating the default judgment.
Lack of Personal Jurisdiction (Improper Service): The court can also vacate a default judgment if you were not properly served with a Summons. If you seek to vacate a judgment because of improper service, you do not need to cite a meritorious defense (or any defense). The disadvantage of seeking to vacate a judgment on the grounds of improper service is that you have the burden of proving the bad service, which you must do at a hearing before the judge. Proving improper service can be difficult depending on the facts of your case.
Motion to Set Aside a Foreclosure Judgment
If there is a good reason why you were simply unable to respond to the bank’s lawsuit before the judgment, you can file a motion to have the court set aside the default judgment. Here, you are asking the judge to set aside your default judgment: because of your mistake, inadvertence, surprise, or excusable neglect; because of the other side’s fraud, misrepresentation, or other misconduct; because the judgment has been satisfied, release, or discharged; or because other reasons of justice and equity require it.
In Ohio, the rule for setting aside a default judgment is explained in GTE Automatic Elec., Inc. v. ARC Industries, Inc. The GTE test says that (1) you must have a meritorious defense, (2) you are entitled to relief under Civil Rule 60(B), and (3) the motion is made within a reasonable time and, for reasons under Civ.R. 60(B)(1)-(3), not more than one year after the judgment was entered.
If you can show that you meet each element of the GTE test, the court can set aside the default judgment and allow you to reenter the case as if the deadline had not passed. This means you can then file an Answer and your defense, and the case will proceed from there.
Act quickly to protect yourself from a Default Foreclosure
If you find yourself facing a default judgment from a bank in a foreclosure lawsuit, you should act quickly to protect your interests and your home. Your best option is to get an attorney on your side to review everything and present you case to the court. Contact Doucet & Associates to help ensure that your rights are protected.
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.
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:
- Immediately, while standing in front of the magistrate, ask him or her to prepare a report on the decision.
- Check with the Court Clerk to find out when the report has been completed and filed.
- 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.
- Mail a copy of your objections to the other party in the case.
- 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.
- 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.
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.
The Fair Housing Act: Conditions required prior to foreclosure
Doucet & Associates argued before the Fifth District that certain conditions must be met before foreclosing on a Fair Housing Act (FHA) loan. In Wells Fargo Bank, N.A. v. Gerst, 5th Dist. Delaware No. 13CAE-05-0042, 2014 WL 108788 (Jan. 9, 2014), The Fifth District reversed the trial’s court’s finding that HUD’s face-to-face meeting requirement was an affirmative defense, and not a condition precedent to the plaintiff-appellee’s foreclosure action. The court stated: “Appellee has failed to establish it complied with the regulation that it have a face-to-face interview with Appellants, or made a reasonable effort to arrange the interview, before bringing the foreclosure action. Further, the letters sent to Appellants . . . cannot be used to demonstrate even minimal compliance with Section 203.604, Title 24 C.F.R., because subsection (d) of that rule prescribes a certified letter as the minimum requirement for a reasonable effort to arrange a face-to-face meeting.”
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
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 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.
 By: Justin Potter, Of Counsel, Doucet & Associates Co., L.P.A.
 Nat’l City Mortgage Co. v. Richards, 2009-Ohio-2556, ¶ 1, 182 Ohio App. 3d 534
Doucet Recovers Treble Damages in Auto Repair Lawsuit
Doucet & Associates Co., L.P.A. recovered treble damages (three times the actual damages) plus attorney fees, in a civil breach of contract and Consumer Sales Protection Act lawsuit against Jacobs Proformance Engines LLC (JPE an Ohio Corporation entity 1709437 – Columbus Ohio). The consumer lawyers at our law firm handle many cases against dishonest car repair shops. Sometimes the claims our lawyers handle result in the sizable recovery of money damages.
In a civil lawsuit, the plaintiff bears the burden of proof to establish all the elements necessary to sustain a claim, which includes the element of damages. With legal representation from a consumer lawyer with Doucet & Associates Co., L.P.A., in this civil lawsuit, the magistrate determined that all elements were met by default. The case was filed in Franklin County Court as a civil breach of contract claim lawsuit and the Consumer Sales Protection Act (CSPA).
Referred to a Magistrate for damages after the court issued a decision and entry granting plaintiff’s Motion for Default, the magistrate awarded damages based upon the default judgment.
The lawsuit was filed in Ohio after our client paid $28,400 for a high performance custom built racing engine “F2SBC Turnkey Engine”. Upon delivery of the finished motor from JPE, our client became suspicious that something was wrong with the engine. The client began disassembling the engine and noted wear and tear not normally associated with new products. Our client contacted Jacobs Proformance Engines LLC (JPE) and raised his concerns, but the defendant told him not to take the engine apart because it would “harm it.” Our client proceeded to take the engine apart and discovered his concerns were correct – the “new” engine was actually used.
After our client identified the breach of contract by JPE and contacted Doucet & Associates, our consumer lawyers filed a consumer protection lawsuit on his behalf. Our client not only recovered actual damages, but for the personal stress that lead to issues with his family, his sleep, and his general well being.
The court decided that our client would recover civil damages against Jacobs Performance Engines LLC (JPE) in the amount of $70,400 plus $500 for non-economic damages, plus attorney fees, plus interest, and plus court costs.
As a civil breach of contract lawsuit with elements covered by the Consumer Sales Protection Act, colloquially known as consumer protection, our client utilized our consumer lawyer services to obtain a favorable judgment in the breach of contract case against JPE. If you are an Ohio resident facing a similar issue with an auto repair, maintenance, upgrading shop, or another issue with this same company, you are invited to call Doucet & Associates at (614) 944-5219 to discuss your legal options.
Doucet Files Class Action Lawsuit Against Chase Mortgage for Alleged Violations After Chapter 13 Bankruptcy
Doucet & Associates filed a class action lawsuit against Chase Home Finance, LLC and JP Morgan Chase Bank, N.A. (Chase Mortgage) alleging a systematic practice of violating borrower court ordered and approved Chapter 13 Bankruptcy plans. Our after-bankruptcy lawyers allege that the practice does not allow mortgage debtors to have the fresh start they deserve following the successful completion of the Chapter 13 Bankruptcy process. The option remaining for our after-bankruptcy lawyers is to sue, and our bankruptcy lawyers have filed this lawsuit specifically alleging that Chase Mortgage:
- Improperly applies and accounts for after-bankruptcy mortgage payments made as part of confirmed Chapter 13 Bankruptcy Plans.
- Continues attempting to collect (and collecting) additional fees following successful completion of their Chapter 13 Bankruptcy Plans.
- Blatantly ignoring court orders discharging our client under Section 1328(a) of the United States Bankruptcy Code.
- Ignoring our clients multiple requests to update their account.
- Disregarding notices from our client’s previous bankruptcy lawyer explaining that Plaintiff’s Chapter 13 Bankruptcy had been completed and discharged.
The suit alleges that after bankruptcy Chase Mortgage continued to treat our client as if the Chapter 13 Bankruptcy had never been completed. The recourse here is for the lawyers with Doucet & Associates Co., L.P.A. to file a class action lawsuit and sue Chase Mortgage after its bankruptcy errors.
The complaint alleges that our client and those similarly situated, having followed the proper rules and made payments under their court approved Chapter 13 Bankruptcy plan, are now left to pay hundreds to thousands of extra dollars in unknown and un-accounted fees after bankruptcy. Chase Mortgage is also alleged to have mishandled the bankruptcy credit reporting process leaving our client’s account as “in bankruptcy” and not properly accounting for the current status of the loan.
Our client followed the proper Chapter 13 Bankruptcy procedures, including making regular monthly payments to Chase Mortgage, until the plan was approved. She also submitted the proper monthly payments to the Trustee for submission to various creditors including Chase Mortgage during bankruptcy, and after bankruptcy, she made proper monthly payments again to Chase Mortgage.
Doucet & Associates believes that this is indicative of a broad pattern of incorrectly handling debtors’ mortgage loans for previously discharged debts, and has filed this class action lawsuit against Chase Home Finance, LLC and JP Morgan Chase Bank, N.A. on behalf of our client and those similarly situated. We estimate this case could be representative of at least thousands of individuals and encourage anyone who has gone through a similar experience with Chase Home Finance, LLC and JP Morgan Chase Bank, N.A. or any other mortgage loan servicer to call us immediately at (614) 944-5219 if they have been discharged from Chapter 13 bankruptcy.
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.