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.
A loan modification is a great resource to prevent homeowners suffering from a financial emergency from falling behind on their mortgage payments and becoming a victim of foreclosure...
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...
CitiMortgage and CitiFinancial Servicing have been fined $28.8 million by the Consumer Financial Protection Bureau for failing to help homeowners avoid foreclosure by using bad loss mitigation practices...
March is National Credit Education Month and Doucet & Associates would like to invite you to read some of our articles on improving your credit, keeping track of your credit report, and your rights under the Fair Credit Reporting Act...
Columbus, Ohio residents in the 614 area code receive an extremely high number of robocalls. Robocalls are automated messages sent to a consumer’s phone that are typically annoying and unwanted...
TransUnion and Equifax are refunding $17.7 million to consumers and paying $5.5 million in fines for giving consumers misleading and deceptive credit scores.
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.
Do You Want to Improve Your Credit Score?
Experian estimated Columbus, Ohio’s average credit score to be 666 in 2015. That is only three points below the 669 national average. If your credit score falls below these averages, there are steps you can take as a consumer to gain some points. The lawyers at Doucet & Associates Co., L.P.A. can also offer advice about the Fair Credit Reporting Act (FCRA) and how to correct problems on your credit report.
Ways to Improve Your Credit Score
1.You should first check your credit report for errors using at least one of the three main credit reporting agencies (Equifax, Experian and TransUnion). Your credit score may differ a little on each report based on resources the agency used to develop your score. If there is an error on your credit report, the FCRA says you can send a letter to the credit reporting agency asking for the error to be corrected. If the credit reporting agency fails to correct the error, you can contact Doucet & Associates Co., L.P.A. for help on correcting your report or read more about the FCRA on our website by clicking here and they may have to pay our fees. Correcting the errors on your credit report can improve your credit score.
2.Get a credit card. Having a credit card shows that a creditor can trust you to pay back borrowed money. If you use the credit card correctly without developing debt, then you can increase your credit score.
3.Pay off your credit card debt. Some people cannot pay off all their debt in one payment. If that is the situation for you, stop using your credit cards and focus on minimizing your debt by making the required minimum payments every month.
4.Pay your bills on time. This includes all bills such as credit card bills, utility bills, medical bills and student bills. Failure to pay bills on time lowers your credit score.
5.Ask for a raise on your credit card limit. Getting a raise does not mean you have to spend more on your credit card, but shows that your creditors trust you more.
6.Get involved in paying off different types of loans, whether it is all at the same time or separately. Your credit score can be improved if you have history of accurately paying off a credit card, an auto loan, student loans and a home mortgage loan. If you encounter problems paying off a home mortgage loan the lawyers at Doucet & Associates Co., L.P.A. have experience helping homeowners secure loan modifications and fighting foreclosure lawsuits.
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.
Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA) requires credit reporting agencies to provide accurate information to lenders. The FCRA also creates legal rights for consumers whose information is being investigated and misrepresented by credit reporting agencies such as TransUnion, Experian, and Equifax.
Credit report agencies make money off of lenders who are requesting credit reports to justify loans and interest rates. Credit report agencies are not government funded. Credit reports are often required for loans on larger purchases such as cars and homes mortgages. Credit reporting agencies over report negative credit information to lenders, such as missed payments and debts. Lenders make more money off of people who are deemed a higher credit risk because they can enforce higher interest rates. Therefore, a lender will keep returning to a credit reporting agency who can help provide information that can support higher interest rates.
Consumer Rights Protected by the Fair Credit Reporting Act (FCRA)
A consumer has the right to have an accurate credit report distributed to lenders. A consumer also has the right to challenge credit report agencies who are providing false or inaccurate information. A lender must provide a consumer with the name of the credit reporting agency who allegedly provided inaccurate information on a credit report if requested.
The FCRA also made it illegal for credit reporting agencies to provide subjective information on a credit report such as religion, race, how long you have been committed to your job and details about other people you may live with.
How Can a Consumer Challenge a Credit Reporting Agency Under the FCRA?
A consumer must send a written letter to the credit report agency detailing the inaccurate information provided on the credit report. It is important for the consumer to provide as much documentation as possible to support why the information is inaccurate. Depending on the inaccurate information bank statements, records, and receipts of purchases are good examples of documents to provide.
A credit reporting agency who receives a letter must re investigate in the information being provided on the consumers credit report. Then must reply to the consumer detailing if the information was corrected or not. If a credit reporting agency refuses to fix inaccurate information, the consumer should then seek out a consumer lawyer to help sue the company.
What Type of FCRA Damages Can a Consumer Sue For?
- Actual damages are real losses for the consumer. Regarding the FCRA, a consumer might experience financial loss due to inaccurate information being provided on a credit report. A consumer who receives a higher interest rate on a loan or mortgage can experience economic loss and possibly debt.
- Statutory damages are when the credit reporting agency is providing inaccurate information, but the consumer has not financially been affected yet. The inaccurate information could be preventing the consumer from even acquiring a loan.
- Punitive damages are deliberate wrongdoings by a credit reporting agency. An example of a wrongdoing would be a credit report agency refusing to read a letter from a consumer or refusing to re investigate the information being provided on a credit report. Punitive damages are rare in cases regarding the FCRA.
A credit reporting agency will also be responsible for paying lawyer fees if the consumer wins the case.
Why May There Be Inaccurate Information on a Credit Report?
Mistaken identity is an issue the credit reporting agencies battle. These mistakes are often due to a merged file. Consumers with common last names and the same first names can be confused. False addresses can appear on credit reports from someone with the same name living at a different address. Seniors and Juniors can be commonly confused especially if they live at the same address to.
There are many complaints about credit report agencies. The Federal Trade Commission (FTC) does not have resources and funding to check all the information the credit report agencies are providing to lenders.
How Can a Consumer Check Their Credit Report?
Consumers are able to access their credit report annually from TransUnion, Experian, and Equifax. Most negative information is only listed on a credit report for seven years. Bankruptcy is usually listed for ten years. Also consumers have to give permission to lenders to look at their credit report.
You can find more information about the Fair Credit Reporting Act (FCRA) by reading 23 Legal Defenses to Foreclosure: How to Beat the Bank by Troy Doucet. If in Ohio, call Doucet & Associates Co., L.P.A. at (614) 944-5219 for a consultation.
Truth In Lending Act
The Truth in Lending Act (TILA) is a federal law legislated on May 29, 1968 under the Consumer Credit Protection Act. The TILA was created to protect consumers involved in contracts with credited purchases with creditors and lenders. Essentially the TILA act enforces loan companies and credit card companies to provide all information regarding interest rates and other fees before a consumer agrees to borrow.
TILA covers open-ended credit and close-ended credit. Open-ended credit includes borrowed funds such as credit cards, debit cards and home equity loans. Examples of close-ended credit include auto loans and home mortgages. Information regarding terms of an Annual Percentage Rate (APR), the total amount offered in a loan and the frequency of due dates to repay the loan is now obligatory for the loaner to provide to the consumer under this act. The dispense of required information now allows consumers to be aware of contracts, costs of credit and so-called hidden fees. Consumers are also able to be more confident and comfortable agreeing to credit related contracts because they can use the provided information to compare a variety of loans or borrowed money.
Failure of cooperation by a loaner or creditor to provide the required information to the consumer can result in rescission in certain instances. The loan or credit transaction would be disentangled and canceled, and all fees and paid money would be returned back to the consumer in a rescission. Lenders and credit companies are more disposed and willing to provide the required information based on TILA due to the amount of loss which could generated during a rescission.
You can find out more information about the Truth in Lending Act (TILA) regarding home owners and foreclosure by reading 23 Legal Defenses to Foreclosure: How to Beat the Bank by Troy Doucet.
Watch Out for the Dotted Line!
This week, the Ohio Sixth District Appellate Court in Toledo dismissed a consumer’s appeal after he claimed he was convinced to sign a consent agreement with the property owner through fraud because he had entered into a contract that barred his case. The lesson to learn from the Sixth District is to be aware of what you sign and how it can affect you into the future.
Charles Hanson was living in a house when Flex Property Management purchased it at a sheriff’s sale. Flex Property gave notice to Mr. Hanson to leave the property, and was directed to vacate by the end of February 2015. Mr. Hanson, representing himself pro se, entered into settlement agreement with Flex Property outside the courtroom. In exchange for $1000 cash, receiving a pre-approval letter from the bank, and an appraisal on the home, Mr. Hanson was permitted to stay in the house and make an offer to purchase. Mr. Hanson signed a consent judgment in April 2015 that was sent along with a drafted purchase agreement for the property.
However, when the two sides returned to the court, Flex Property filed the consent judgment and, according to Mr. Hanson, this showed that Flex Property had no intention of allowing him to purchase the property. With the consent judgment duly filed, the court informed Mr. Hanson that he would be removed from the house on May 30, 2015. Mr. Hanson appealed the court’s order.
The Sixth District court dismissed Mr. Hanson’s appeal.
The key issue identified by the Appellate Court is that a consented judgment entry or settlement agreement is a binding contract between the parties. Generally, one cannot appeal a contract. Since Mr. Hanson did not expressly reserve the right to appeal in the terms of the consent agreement, he was barred from contesting the judgment in that fashion.
Since the fraud that Mr. Hanson alleged to Flex Property occurred outside the courts, there is no evidence of it on the record. As such, Mr. Hanson could not argue the fraudulent inducement claim in a direct appeal either. Instead, the Sixth District instructed that Mr. Hanson would have to petition the court to set aside the judgment under Ohio Rule of Civil Procedure 60(B) and make that case to the trial court. This is a more difficult process than a direct appeal.
Realize that when you sign something, you are likely forming a contract with the other party. Mr. Hanson represented himself and entered into two contracts with Flex Property: the settlement agreement & the consent judgment. Without realizing it, he had given up some of his rights and limited his options for the future.
A contract does not need to be a formal document that reads “Contract” at the top, or have “Wherefores” and “Therefores” sprinkled throughout. If the essential legal elements of a contract (offer, acceptance, and consideration) are met, the court will likely deem an agreement a legally binding contract.
Before you sign anything, ensure that you understand the consequences of each term and element. If you are across from a bank or property management company, you know they have had their attorneys make sure their rights and options are well protected. The best option is to get an attorney on your side to review everything and protect your interests. Contact Doucet & Associates to help ensure that your rights are protected.
Read the decision [Capital Income & Growth Fund, L.L.C. v. Hanson, 2016-Ohio-2973]
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
Brunner Dissent in Hazel May Add Foreclosure Defense for FHA Homeowners
Homeowners facing foreclosure would do well to read Judge Jennifer Brunner’s thorough dissent in Wells Fargo Bank, N.A. v. Hazel . Hazel defended an action in foreclosure in Franklin County by herself (pro se) and, though ultimately unsuccessful, might have marked a path to defending certain foreclosures for future defendants.
Hazel’s home loan was a Federal Housing Administration (FHA) loan. These loans are governed by the Department of Housing and Urban Development (HUD), and require lenders to follow very specific steps in order to properly foreclose on a home. The loan contract, also known as a promissory note, contained a vague reference to the HUD regulations:
If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require immediate payment in full of the principal balance remaining due and all accrued interest * * * In many circumstances regulations issued by the Secretary will limit Lender’s rights to require immediate payment in full in the case of payment defaults. This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, “Secretary” means the Secretary of Housing and Urban Development or his or her designee.
It is settled Law in Ohio that following HUD regulations prior to initiating foreclosure on FHA loan houses constitute “conditions precedent” under Ohio Civ.R. 9(C). However, Judge Brunner would rule that this vague reference to the HUD regulations actually requires lenders to attach the regulations to a Complaint for foreclosure to be in compliance with the pleading requirements of Ohio Civ.R 10(D). She writes:
Even if Wells Fargo were to assert that the conditions precedent were incorporated by reference to HUD regulations, in order to take advantage of Civ.R. 9(C), Wells Fargo would have needed first to comply with Civ.R. 10(D) and attach the documents that are the basis of its claim-including terms set down elsewhere that are incorporated by reference. In other words, Wells Fargo having made a “claim,” was required by Civ.R. 10(D)(1) to “attach to the pleading” a copy of the operative document.
Brunner’s analysis, and Hazel’s efforts, may have created another avenue to challenge the complaint by forcing lenders to attach the regulations to the complaint itself or be subject to dismissal. If nothing else, Homeowners who have FHA loans should be aware of HUD regulation 24 C.F.R. 201.50, know where to find it, and hold the lenders to it.
 Wells Fargo Bank, N.A. v. Hazel, 2016-Ohio-305, cause dismissed, 2016-Ohio-915, 145 Ohio St. 3d 1412, 46 N.E.3d 705, (10th Dist. 2016) (J. Brunner, dissenting).
 Id., at ¶14, emphasis added.
 See for example: BAC Home Loans Servicing, LP v. Taylor, 9th Dist. No. 26423, 2013-Ohio-355, 986 N.E.2d 1028, U.S. Bank, N.A. v. Detweiler, 5th Dist. No. 2010CA00064, 191 Ohio App.3d 464, 2010-Ohio-6408, 946 N.E.2d 777.
 Wells Fargo Bank, N.A. v. Hazel, at ¶36.