Its never fun to lose a case.
And it is especially not fun to lose a case in the Ohio Supreme Court.
That is why it has taken me a couple of weeks to write about the Court’s decision in Bank of America v. Kuchta. In part I waited because we have been working on a motion to reconsider. We are filing that motion to reconsider today. Kuchta G 2014 10 17 Motion for Reconsideration with Memorandum. We are, of course hopeful that the Ohio Supreme Court will reconsider some very wide reaching implications of their decision. In a nutshell, we have argued in our motion to reconsider that if a plaintiff in a lawsuit does not have a dispute with the defendant that they sue at the time the suit is filed than the entire suit is void. The Court has ruled that unless the defendant raises that issue during trial or on appeal that the fact there was no real controversy cannot ever be raised.
Those of us who practice in the Foreclosure and Debt Buyer defense arena understand, perhaps better than the Ohio Supreme Court how difficult that it can be for a Defendant, especially one not represented by an attorney to figure out if a Plaintiff in a lawsuit is misrepresenting facts about their standing in the short time frames that courts allow to answer or to respond to a motion for summary judgment. In the Kuchta case, by the time the Defendant’s figured out that Bank of America did not hold either their note or mortgage at the time they filed the foreclosure lawsuit against them and hired us to file a motion to vacate the judgment, the Ohio Supreme Court says they were too late to raise the issue.
We argue in the Motion to Reconsider that that right and duty belongs to the court not the parties and cannot be waived. We certainly hope, in the interest of justice that they give this matter a second look.
But as hard as it is to lose a case it is most important that lawyers and litigants in present and future focus on the important lessons that this case provides to anyone in Ohio who has been sued for any reason. Even for individuals who have been sued over debts where they might have actually defaulted. Those lessons are as follows:
- Just because you’ve defaulted on a debt (mortgage debt, credit card or other debt) and have been sued doesn’t mean that the person suing you has the right to bring the claim. (Everyone agreed that if the Kuchta’s had raised the issue earlier the case should and would have been dismissed)
- It is critical to file an answer or motion to dismiss within 28 days of being served with a lawsuit by certified mail or process server or you risk losing the right to ever be able to challenge the standing of the party suing you.
- Understand that in a surprising number of cases involving the collection of mortgage notes and other debts the entity filing the lawsuit is unable to prove that they have the right to enforce the note. (If Bank of America, one of the largest banks in the world can screw this up anyone can and many debt buyers really don’t know if they have the right to sue you)
- If you have been sued you need to consult a lawyer. If you have been sued over a debt, a Dann Law Firm lawyer will consult with you for free. We don’t do that to be nice (although I think we are nice). We have found in the vast majority of debt lawsuits that there may be legal defenses, bankruptcy strategies or even affirmative claims that can be brought against the plaintiff. We may also discover that you have claims for damages under the Fair Credit Reporting Act, The Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, or state consumer protection laws.
- If you have an application pending for a loan modification and you have been sued for foreclosure you may not only have defenses to the foreclosure but you may have claims under new Truth In Lending Act and Real Estate Settlement Protection Act Regulations that took effect this year against the loan servicer for damages that may include the costs of defending the foreclosure. We’ve filed two of the first such cases in the country.
- We are starting to get traction in Ohio Courts on a variety of issues that allow us to defend foreclosure lawsuits and lawsuits attempting to collect other debts:
- Plaintiffs regularly fail to prove that they have standing.
- Plaintiffs often fail to properly accelerate the debt.
- Homeowners with FHA mortgages have special statutory and regulatory protections.
- Affidavits used in foreclosure and debt collection cases are being to be rejected by courts in Ohio.
- Plaintiffs regularly sue defendants in the wrong court.
There are many more lessons to be learned but the most important take away is this, it is more critical than ever when faced with foreclosure or a lawsuit by anyone to seek the advice of an attorney experienced in defending such claims who is unafraid to financial institutions and other financial predators.