Wednesday, October 31, 2012

Ohio Supreme Court: Bombshell win for homeowners

BOMBSHELL WIN:  Schwartzwald vs. Federal Home Loan (Freddie Mac)
Lack of standing CANNOT be cured or remedied with a later assigned mortgage
Judgement REVERSED and CASE DISMISSED
             
Explosive Legal News: 
Supreme Court of OHIO:  
Cases: Nos. 2011-1201 and 2011-1362 - Submitted April 4, 2012
Decided: October 31, 2012
Written Opinion: Judge Terrance O'Donnell
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP,and M
CGEE BROWN, JJ CONCUR

This is a major victory and EXPLOSIVE NEWS in the FRAUDclosure battle

Federal Home Loan Mortgage Corp. v. Duane Schwartzwald et al. (HERE)

The Supreme Court of Ohio ruled that standing to initiate a mortgage foreclosure lawsuit is determined on the date the complaint is filed. A foreclosing party, which lacked standing at the time the suit was filed, CANNOT remedy that defect by obtaining an assignment of a mortgage and promissory note AFTER the filing of the foreclosure action but prior to an entry of a final judgment.

The court’s 7-0 unanimous decision dismissed a decree of foreclosure granted to Federal Home Loan Mortgage Corporation FHLMA  (AKA "Freddie Mac") against Duane and Julie Schwartzwald because FHLMA did not have standing at the time it filed the foreclosure action.


Congratulations to the court for making the right decision and for upholding the law. Many similar cases were cited from other states to support the decision. Congratulations to fine attorney ANDREW ENGEL for fighting this battle on behalf of the Schwartwald family (no longer in the home) and attorney BRUCE BROYLES for submitting an amicus brief on behalf of this blog
OHIO FRAUDCLOSUE (our amicus brief here) and OHIO homeowners

COURT FINDS:
{¶41}It is fundamental that a party commencing litigation must have standing to sue in order to invoke jurisdiction of the common pleas court. Civ.R. 17(A) does not change this principle, and a lack of standing at the outset of litigation cannot be cured by receipt of an {later post filing} assignment .... or by substitution of the real party in interest.
{¶42}Here it is undisputed that Federal Home Loan did not have standing at the time it commenced this foreclosure action, and therefore it failed... Accordingly, the judgment of the court of appeals is reversed, and the cause is dismissed.

OTHER STATE DECISIONS were relied upon:
{¶27}This principle accords with decisions from other states holding that standing is determined as of the filing the complaint.

See, e.g., Deutsche Bank Natl. Trust v. Brumbaugh, 2012 OK 3, 270 P.3d 151, ¶ 11 (“If Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice * * *” [emphasis added]);
U.S.Bank Natl. Assn. v. Kimball, 190 Vt. 210, 2011 VT 81, 27 A.3d 1087, ¶ 14 (“U.S. Bank was required to show that at the time the complaint was filed it possessed the original note either made payable to bearer with a blank endorsement or made payable to order with an endorsement specifically to U.S. Bank” [emphasis added]);
Mtge. Electronic Registration Sys., Inc. v. Saunders, 2010 ME 79, 2 A.3d 287, ¶ 15 (“Without possession of or any interest in the note, MERS lacked standing to institute foreclosure proceedings and could not invoke the jurisdiction of our trial courts” [emphasis added]);
RMS Residential Properties, L.L.C. v.Miller, 303 Conn. 224, 229, 232, 32 A.3d 309 (2011), quoting Hiland v. Ives, 28 Conn.Supp. 243, 245, 257 A.2d 822 (1966) (explaining that “ ‘[s]tanding is the legal right to set judicial machinery in motion’ ” and holding that the plaintiff had standing because it proved ownership of the note and mortgage at the time it commenced foreclosure action);
McLean v. JP Morgan Chase Bank Natl. Assn., 79 So.3d 170, 17 (Fla.App.2012) (“the plaintiff must prove that it had standing to foreclose when the complaint was filed”); see also Burley v. Douglas, 26 So.3d 1013, 1019(Miss.2009), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 571, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), fn. 5 (“ ‘standing is to be determined as of the commencement of suit’ ”);
In re 2007 Administration of Appropriations of Water of the Niobrara, 278 Neb. 137, 145, 768 N.W.2d 420 (2009) (“only a party that has standing may invoke the jurisdiction of a court or tribunal. And the junior appropriators did not lose standing if they possessed it under the facts existing when they commenced the litigation” [footnote omitted]).

PREVIOUS Ohio circuit court decisions:
{¶34} Thus the Third and the Ninth Circuits have rejected the notion that Fed. R. Civ. P. 17(a), on which Civ.R. 17(A) is based, allows a party with no personal stake in a controversy to file a claim on behalf of a third party, obtain the cause of action by assignment, and then have the assignment relate back to commencement of the action {and} “Rule 17(a) does not apply to a situation where a party with no cause of action files a lawsuit to toll the statute of limitations and later obtains a cause of action through assignment. Rule 17(a) is the codification of the salutary principle that an action should not be forfeited because an honest mistake; it is not a provision to be distorted by parties to circumvent the limitations period.

{¶37} Other courts have also determined that plaintiff cannot rely on procedural rules similar to Civ.R. 17(A) to cure a lack of standing at the commencement of litigation. Davis v. Yageo Corp., 481 F.3d 661, 678 (9th Cir.2007)

{¶38}We agree with the {above} reasoning and analysis presented in these cases. Standing is required to invoke the jurisdiction of the common pleas court. Pursuant to Civ.R. 82, the Rules of Civil Procedure do not extend the jurisdiction of the courts of this state, and a common pleas court cannot substitute a real party in interest for another party if no party with standing has invoked its jurisdiction in the first instance

JUDGEMENT REVERSED AND CASE DISMISSED
Andrew M. Engel, for appellants.
Bruce M. Broyles, urging reversal for amici curiae Homeowners of the
State of Ohio and Ohiofraudclosure.blogspot.com.

Advocates for Basic Legal Equality, Inc., and Andrew D. Neuhauser;
Legal Aid Society of Cleveland and Julie K. Robie; Legal Aid Society of
Southwest Ohio, L.L.C., and Noel M. Morgan; Community Legal Aid Services,
Inc., Christina M. Janice, and Paul E. Zindle; and Ohio Poverty Law Center and
Linda Cook, urging reversal for amici curiae Advocates for Basic Legal Equality,
Inc., Legal Aid Society of Cleveland, Legal Aid Society of Southwest Ohio,
L.L.C., Community Legal Aid Services, Inc., Ohio Poverty Law Center, Legal
Aid Society of Columbus, Southeastern Ohio Legal Services, Legal Aid of
Western Ohio, and Pro Seniors, Inc.

.

6 comments:

  1. Hello Everybody, My name is.Mrs.Juliet Quin. I live in Canada and i am a happy woman today? and i told my self that any lender that rescue my family from our poor situation, i will refer any person that is looking for loan to him, he gave me happiness to me and my family, i was in need of a loan of $ 73,000.00 to start my life all over as i am a single mother with 3 kids I met this honest and GOD fearing man loan lender that help me with a loan of $ 73,000.00 Canada Dollar, he is a GOD fearing man, if you are in need of loan and you will pay back the loan please contact him tell him that is Mrs.Juliet Quin that refer you to him. Contact Dr Purva Pius via email: reply to email (urgentloan22@gmail.com)

    LOAN APPLICATION FORM:
    =================
    Full Name:................
    Loan Amount Needed:.
    Purpose of loan:.......
    Loan Duration:..
    Gender:.............
    Marital status:....
    Location:..........
    Home Address:..
    City:............
    Country:......
    Phone:..........
    Mobile / Cell:....
    Occupation:......
    Monthly Income:....

    Contact Us At :urgentloan22@gmail.com

    ReplyDelete
  2. I am a private loan lender which have all take to be a genuine lender i give out the best loan to my client at a very convenient rate.The interest rate of this loan is 3%.i give out loan to public and private individuals.the maximum amount i give out in this loan is $1,000,000.00 USD why the minimum amount i give out is 5000.for more information

    Your Full Details:
    Full Name :………
    Country :………….
    state:………….
    Sex :………….
    Address............
    Tel :………….
    Occupation :……..
    Amount Required :…………
    Purpose of the Loan :……..
    Loan Duration :…………
    Phone Number :………
    Mobile Number: +919910768937
    Contact Email osmanloanserves@gmail.com

    ReplyDelete
  3. I am really appreciating very much by seeing your interesting posts.compare homeowners insurance rates

    ReplyDelete
  4. Here good to see your post for Federal Home Loan vs Duane Schwartzwald which is pretty impressive to read your blog post and got something new things....Housing Loan in Delhi

    ReplyDelete
  5. Hello Everybody,
    My name is Ahmad Asnul Brunei, I contacted Mr Osman Loan Firm for a business loan amount of $250,000, Then i was told about the step of approving my requested loan amount, after taking the risk again because i was so much desperate of setting up a business to my greatest surprise, the loan amount was credited to my bank account within 24 banking hours without any stress of getting my loan. I was surprise because i was first fall a victim of scam! If you are interested of securing any loan amount & you are located in any country, I'll advise you can contact Mr Osman Loan Firm via email osmanloanserves@gmail.com

    LOAN APPLICATION INFORMATION FORM
    First name......
    Middle name.....
    2) Gender:.........
    3) Loan Amount Needed:.........
    4) Loan Duration:.........
    5) Country:.........
    6) Home Address:.........
    7) Mobile Number:.........
    8) Email address..........
    9) Monthly Income:.....................
    10) Occupation:...........................
    11)Which site did you here about us.....................
    Thanks and Best Regards.
    Derek Email osmanloanserves@gmail.com

    ReplyDelete
  6. Need a Debt Loan To Pay Off Bills?
    Take control of your debt today
    Available Now Business Expansion Loan Offer?
    Do you need a loan to pay off Bills?
    Do you need a loan?
    Do you need Personal Loan?
    Business Expansion Loan?
    Business Start-up, Education,
    Debt Consolidation Loan
    Hard Money Loans
    Loan for any thing ?
    We offer loan at low interest rate of 3%
    Loan with no credit check,
    Email us: abubakarloanservice@gmail.com
    Whats App +91-9818603391

    ReplyDelete