When I first began the work of representing homeowners in foreclosure several years ago I truly thought that the battles of protecting consumers would be won or lost by raising issues regarding fraudulent, deceptive or negligent business practices on an industry-wide basis. We spent hours and hours briefing issues related to the securitization of notes and mortgages and challenging the rights of lenders to foreclose on Ohio Homeowners.
We filed class action complaints against foreclosure mill law firms and mortgage loan servicers. These cases brought occasional success, but more often than not ended up slowed or stopped by arcane issues of state or federal civil procedure and pleading. Lenders argued that every loan, every default and every borrower was different and, despite the abhorrent business practices we detailed in our lawsuit, the only way those issues could be raised would be one case at time.
What the loan servicing industry, and their lawyers, didn’t bank on is that we would take them up on their challenge.
So, for the past few years my long-time colleagues, Grace Doberdruk, Dan Solar, the late great Jim Douglass, and I stopped trying to hit for home runs against the banks and mortgage servicers and started to defend each case by hitting for singles.
We have had successes in a few areas recently that I thought would be important to share. In several cases, we have been successful in persuading courts of appeals in Ohio that the evidence the Loan Servicers put in front of the court in support of their motions for summary judgment were simply insufficient to support the judgments that they were being routinely granted. Right before Jim Douglass passed away, several cases he argued regarding the sufficiency of individual affidavits and other summary judgment evidence were reversed by courts of appeals:
In Deutche Bank v. Dvorak the court of appeals held that the witness who signed the affidavit on behalf of Deutche Bank simply lacked sufficient personal knowledge to attest to that which she was testifying to. Similarly, in Bank of America v. Loya and Bank of New York Mellon v. Villalba, our firm persuaded the Court of Appeals for the 9th Appellate District to reverse foreclosure judgments because affidavit evidence offered was insufficient. In Bank of New York Mellon v. Froimson, another of our cases, Jim Douglass persuaded the 8th District Court of Appeals on Reconsideration to reverse a foreclosure judgment because the Plaintiff failed to put forward specific evidence of a merger of one of the holders of the note. These cases forced banks and loan servicers, who chose to avail themselves of Ohio’s courts, to actually prove their case.
It is a simple concept but it has proven effective.
On February 10, we had a similar success when a Butler County Common Pleas Judge granted our motion to dismiss a foreclosure because the Plaintiff failed to record a prior loan modification as required by the Ohio Revised Code. A copy of the decision is here:
Good basic thorough lawyering. Making the Banks and other Lenders prove their case and not backing down.
Its not going to land us in the Wall Street Journal or the New York Times but it creates the leverage to get our clients the results they need and deserve.