Reversal of lower court (Summit County) ruling. "The judgment of the Summit County Court of Common Pleas is reversed and remanded for further proceedings"....and
Affidavit Fail "CitiMortgage failed to prove, through its affidavit or otherwise
that it complied with the notice provisions of the mortgage..and the Elia's {Homeowner} assignments of error are sustained.
Slipping shoddy, manufactured and bogus paperwork past the lower court local judges (old, out-of-touch, too busy) on the “fast track” to foreclosure…used to be easy! The judicial wheels were spun out of control by the large Predator Drone Foreclosure Mills and "Bench Warmers" (local counsel used to foreclose) seeking the highly sought after and computer generated “Green Light” rating (used by LPS Desktop Solutions). Unfortunately thousands of Ohioans lost their homes while these FRAUDclosure factories and drone filing attorneys operated openly in front of Ohio judges that were asleep-at-the-wheel. (Link to report).
However, recent media attention (certainly not from here in Ohio) turned the spotlight on fraudulent and criminal behavior, used by many Foreclosure Mills, to create and execute documents which are genuinely (legally) needed to initiate foreclosures.
Now, the mindless and legally void factory approach used to ram-rod thousands of FRAUDclosures through the judicial machinery of Ohio’s 88 county Civil Court system ….appears to have finally hit a cog. The "stick-in-the-wheel" - recent published decisions coming out of some of Ohio's twelve Appellate Courts. The Appellate courts impanel a 3-judge ruling body and seem to have finally been awakened… from a deep legal sleep of some 5+ years. As of late, the appellate courts have been routinely overturning, dismissing and returning cases to lower courts which had improperly awarded Summary Judgment to pretend lenders, bogus trust & trustees, and improper plaintiff parties.
Below findings: from Court of Appeals OHIO 9th District
Case: CitiMortgage, Inc. v. Elia, 2011-Ohio-2499 (right click & open in New Tab)
Date: May 25th, 2011
Plaintiff: CitiMortgage
Predator Drone Foreclosure Mill: ERIN M. LAURITO, Attorney for plaintiff {CitiMortgage}
Laurito, on behalf of CitiMortgage, apparently felt she didn't need to bother with "NOTICE" or even follow any Rules of LAW for "Default." Apparently, she felt the same as and for needed requirements to "Accelerate" (full amount due). Ohio's 9th Appellate Court at:
{¶13} This Court has recognized that “[w]here prior notice of default and/or acceleration is required by a provision in a note or mortgage instrument, the provision of notice is a condition precedent and {¶15} "The only statement ....that even hints at CitiMortgage having complied with the notice provisions ..is....that CitiMortgage “has elected to call the entire balance of said account due and payable,[.]”...CitiMortgage did not present any evidence of written notice actually having been sent to the Elias. Moreover, CitiMortgage did not file any response or reply, much less any additional evidence, when the Elias directly challenged the notice deficiency in their own affidavits in support of their memorandum in opposition
The court was further insulted that Laurito "apparently" thought her having to respond to the appeal by Elia was a waste of the courts time and judicial resources. The 9th Appellate Court also at:{¶15} ..On appeal, CitiMortgage’s response to the Elias’ notice challenge is that it would be “a waste of [] judicial resources” for this Court to remand this matter because the Elias clearly know they defaulted and CitiMortgage would simply re-file its motion, {next time} adding language that notice was provided.
Below findings: from Court of Appeals OHIO 9th District
Case: CitiMortgage, Inc. v. Elia, 2011-Ohio-2499 (right click & open in New Tab)
Date: May 25th, 2011
Plaintiff: CitiMortgage
Predator Drone Foreclosure Mill: ERIN M. LAURITO, Attorney for plaintiff {CitiMortgage}
{¶13} This Court has recognized that “[w]here prior notice of default and/or acceleration is required by a provision in a note or mortgage instrument, the provision of notice is a condition precedent and {¶15} "The only statement ....that even hints at CitiMortgage having complied with the notice provisions ..is....that CitiMortgage “has elected to call the entire balance of said account due and payable,[.]”...CitiMortgage did not present any evidence of written notice actually having been sent to the Elias. Moreover, CitiMortgage did not file any response or reply, much less any additional evidence, when the Elias directly challenged the notice deficiency in their own affidavits in support of their memorandum in opposition
The court was further insulted that Laurito "apparently" thought her having to respond to the appeal by Elia was a waste of the courts time and judicial resources. The 9th Appellate Court also at:{¶15} ..On appeal, CitiMortgage’s response to the Elias’ notice challenge is that it would be “a waste of [] judicial resources” for this Court to remand this matter because the Elias clearly know they defaulted and CitiMortgage would simply re-file its motion, {next time} adding language that notice was provided.
The court responded to this obvious slap at their authority (by Laurito) at {¶15}.."Had CitiMortgage filed proper materials in the first instance, however, far more judicial resources might have been saved. The plain language of the mortgage clearly requires that the Elias be given notice “prior to acceleration.” It was CitiMortgage’s burden to prove that the notice was given....we cannot conclude that CitiMortgage met its initial... burden and showed that it complied.
Homeowner Elias pointed out for the court - what they thought was an obvious Robo-Signed affidavit that was void of truth (FRAUD!)....{¶11} The Elias argue that CitiMortgage’s affiant, Menne, could not have personal knowledge of the truth of the statements set forth in his affidavit because: (1) CitiMortgage was not even assigned the mortgage until after the alleged default occurred; and (2) Menne’s affiliation with CitiMortgage was in question, as he claimed to be a vice president of both CitiMortgage and MERS “at virtually the same time.”
Homeowner Elias pointed out for the court - what they thought was an obvious Robo-Signed affidavit that was void of truth (FRAUD!)....{¶11} The Elias argue that CitiMortgage’s affiant, Menne, could not have personal knowledge of the truth of the statements set forth in his affidavit because: (1) CitiMortgage was not even assigned the mortgage until after the alleged default occurred; and (2) Menne’s affiliation with CitiMortgage was in question, as he claimed to be a vice president of both CitiMortgage and MERS “at virtually the same time.”
The court was clearly troubled by this and even tried to point out the conflict and improbability of the affiant holding down a prestigious title of Vice President for multiple entities and banks - at the same time. The court stated {bolding and underline mine for added emphasis}
....{¶12} ....{W}e are troubled by the fact that CitiMortgage opted not to respond, either in the court below or on appeal, to the Elias’ argument that Menne’s affiliation with the bank is questionable. Specifically, the Elias correctly observed that, on February 2, 2009, Menne signed an assignment of the mortgage at issue as a vice president of MERS and, on March 3, 2009, he signed the affidavit in question as a vice president of CitiMortgage.
The Elia decision (above) is another example of proper adjudication within the Appellate system. Elia is supported by a similar decision out of Ohio's 5th Appellate District Court, which found bogus affidavits with legal foundation - being a "Screen Shot" from a computer - could NOT be used or relied upon. The Home Equity Theft reporter analysis (here)
Unfortunately the appellate court can only make note of some issues (and cannot rule on them) if defendants did not "properly" raise them AND provide evidence, at the time of appeal. But the court helped (hint – hint) defendant/homeowner know - what to provide - when the case is OVERTURNED and sent back to the lower court .The 9th court at {¶12} .....Without any additional evidence in the record before us that actually contradicts Menne’s assertion that he was a vice president of CitiMortgage at the time he signed an affidavit on its behalf.....we cannot reject his averment ....on the basis of the Elias’ unsupported observation.
Fraud is Fraud…no matter how many times you cover it up. You can’t legally unscramble the foreclosure omelettes “Cooked-Up" by the FRAUDclosure factories (LPS and MERS) along with the Predator Drone Mill Attorneys. Unfortunately our judicial system continues to allow them.…. to try again - over and over - to give bogus plaintiff - multiple attempts to “get it right” (WHY?)
....{¶12} ....{W}e are troubled by the fact that CitiMortgage opted not to respond, either in the court below or on appeal, to the Elias’ argument that Menne’s affiliation with the bank is questionable. Specifically, the Elias correctly observed that, on February 2, 2009, Menne signed an assignment of the mortgage at issue as a vice president of MERS and, on March 3, 2009, he signed the affidavit in question as a vice president of CitiMortgage.
The Elia decision (above) is another example of proper adjudication within the Appellate system. Elia is supported by a similar decision out of Ohio's 5th Appellate District Court, which found bogus affidavits with legal foundation - being a "Screen Shot" from a computer - could NOT be used or relied upon. The Home Equity Theft reporter analysis (here)
Unfortunately the appellate court can only make note of some issues (and cannot rule on them) if defendants did not "properly" raise them AND provide evidence, at the time of appeal. But the court helped (hint – hint) defendant/homeowner know - what to provide - when the case is OVERTURNED and sent back to the lower court .The 9th court at {¶12} .....Without any additional evidence in the record before us that actually contradicts Menne’s assertion that he was a vice president of CitiMortgage at the time he signed an affidavit on its behalf.....we cannot reject his averment ....on the basis of the Elias’ unsupported observation.
Fraud is Fraud…no matter how many times you cover it up. You can’t legally unscramble the foreclosure omelettes “Cooked-Up" by the FRAUDclosure factories (LPS and MERS) along with the Predator Drone Mill Attorneys. Unfortunately our judicial system continues to allow them.…. to try again - over and over - to give bogus plaintiff - multiple attempts to “get it right” (WHY?)
This legal nightmare is paid for by the TBTF banks, rather than negotiate a settlement, provide a loan mod, or ...gasp...try some principal reduction. The banks would rather throw money at the attorneys until they financially exhaust the homeowner (or drive them insane) with on-going and never ending legal filings. All this in an effort ... to pry the home ..out from the rightful owner. Yea..this helps the "housing recovery"
Thank God the Appellate courts (which are are feed up) are no longer awarding a “Free Home” to the fake lender/owner/plaintiff. They are making the foreclosing party prove up "standing" to invoke the jurisdiction of their courts. Although I don’t see the Predator Drone (Mill Firms) FRAUDClosure efforts stopping. The good judges, have finally peeked out their courtroom windows and apparently see the blindfolded lady ….attempting to balance....the Scales of Justice. Thank You OHIO Judges! for getting it right!
The 9th Appellate Court:
{¶16} ...we do agree that CitiMortgage failed to prove, through its affidavit or otherwise, that it complied with the notice provisions of the mortgage. As such,... {¶17} The Elias’ assignments of error are sustained for the reasons set forth above. The judgment of the Summit County Court of Common Pleas is reversed and remanded for further proceedings consistent with the foregoing opinion.
Honest working Attorneys for the Defendants: (Ziad and Holley Elia): MARGARET A. MCDEVITT, and JULIUS P. AMOURGIS, Attorneys at Law, for Appellants.
{¶16} ...we do agree that CitiMortgage failed to prove, through its affidavit or otherwise, that it complied with the notice provisions of the mortgage. As such,... {¶17} The Elias’ assignments of error are sustained for the reasons set forth above. The judgment of the Summit County Court of Common Pleas is reversed and remanded for further proceedings consistent with the foregoing opinion.
BETH WHITMORE FOR THE COURT
MOORE, J. BELFANCE, P. J. CONCUR
Honest working Attorneys for the Defendants: (Ziad and Holley Elia): MARGARET A. MCDEVITT, and JULIUS P. AMOURGIS, Attorneys at Law, for Appellants.
