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
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

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

{¶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

Andrew M. Engel, for appellants.
Bruce M. Broyles, urging reversal for amici curiae Homeowners of the
State of Ohio and

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.


Monday, October 22, 2012

Obama: "too many homes underwater"

FINALLY !!!- President Obama addresses "underwater homeowners" + Call to action

                 Weekly Presidential address - Saturday October 20th 2012

........."Too many families are still having a hard time making the mortgage on their piece of the American Dream, {and} now we have to build on the progress we’ve made, and keep moving forward.  I never believed that the best way to deal with the housing market was to just sit back, do nothing, and simply wait for things to hit bottom. {I.E. The Romney Plan}That would have been a disaster for all the responsible families who – through no fault of their own – were struggling to make ends meet. Instead, I’ve made helping those homeowners a priority.
Since I took office, my Administration has taken action to help millions of families stay in their homes. 
We teamed up with attorneys general in almost every state to investigate and crack down on the practices that caused this mess.  And in the end, we secured a $25 billion settlement from the biggest banks – one of the biggest settlements in history – and used it to provide relief to families all across America.

We’ve taken action to help responsible homeowners refinance their mortgages. As a result, just this year hundreds of thousands of Americans who were stuck in high-interest loans have been able to take advantage of historically low rates and are saving thousands of dollars every year. 

And now I want every homeowner in America to have that chance. I just wish it didn’t require an act of Congress. But it does. So, back in February, I sent Congress a plan to give every responsible homeowner the chance to save about $3,000 a year on their mortgage by refinancing at historically low rates. That’s the equivalent of a $3,000 tax cut.

It’s a plan that we know will work.  It has the support of independent, nonpartisan economists and leaders across the housing industry.  It’s a no-brainer that should have passed easily. 

But Republicans in Congress banded together and kept this plan from even coming to a vote. They banded together and prevented millions of Americans – including many of you listening today – from saving $3,000 a year.  That’s money that could have gone back into the value of your home, or your kid’s college savings account. That’s money that could have gone into your local businesses, so they could hire and create more jobs in your town. 

But Republicans in Congress still won’t let that happen. And that’s only held back the economy, when we should be doing everything we can to accelerate our economic engine. Let’s be honest – Republicans in Congress won’t act on this plan before the election. But maybe they’ll come to their senses afterward if you give them a push. So contact your Representative, especially if this plan will help you or someone you know.  Tell him or her that American homeowners have waited long enough. Tell them that it’s time for Congress to stop standing in the way of our recovery and to start standing up for you."

Full White House transcript (HERE)

Related Post: HOME IS WHERE THE VOTE IS - Campaign - (HERE)

Friday, October 5, 2012

DEBATE: What Housing Crisis?

Eric Gay - Associated Press
A Housing and Foreclosure Crisis? What? Is there is still a housing crisis? That should be your reaction after Tuesday nights' second presidential debate failed to touch upon the topic that started the great recession. In the first debate, October 3rd, both President Obama and Governor Romney steered clear of addressing the foreclosure crisis that helped push the country into a recession, devastated millions of families and has continued to hold back the economy or even resemble a recovery. You may have by now come to the conclusion - The Housing Crisis is Over.

Tracy Van Slyke, Director at New Bottom Line @ HuffingtonPost:

HuffPost Politics Blog: The Real Debate Loser: The Voters

President Obama and Governor Romney gingerly sidestepped into housing and Wall Street abuse for an estimated two minutes. That seems like enough time to talk about, oh you know, the reason our economy is in the tank, millions of jobs lost, life savings ripped away, over 15 millions homeowners underwater, and millions of others unfairly (and often illegally) foreclosed on.

There was nothing about any attempts to hold Wall Street accountable for crashing the economy. There was zip about how to help the millions of homeowners still suffering. There were no policy proposals debated, much less put forth, including potential major solutions such as principal reduction, which economists from both ends of the political spectrum, say is key to get rebuilding our economy.
But even though I'm angry and depressed right now, I'm not going to give up. Neither will the homeowners and underwater voters pressuring the candidates to talk real solutions, not regurgitate attack ads. There's too much at stake.

* Only eight months ago, the president delivered 20 minutes of rhetoric on foreclosures, Wall Street crimes and how it wrecked the economy. He bragged on how the administration had made fixes and it was a top priority to repair the economy and hold Wall Street accountable!.....what happened? Try to watch even 10 minutes of the above video...any 10 minutes...why how about any 5 minutes or even 3 minutes. If you watch even a 2 minute will be more time ...than the president spent on this topic - during the entire debate.

Over the next few weeks, our Home Is Where The Vote Is campaign will continue to pressure both candidates to address the housing crisis as they travel the country talking to voters and homeowners in key swing states like Nevada, Ohio, Colorado and Florida. President Obama and Governor Romney ignore underwater voters in these swing states at their own peril.

We will call on the next presidential debate moderator, Candy Crowley, to fill the void left by her predecessor and to make the connection that the American people want to know which candidate can fix the housing crisis and rebuild our economy.

From Jed Kolko, chief economist for Trulia:

The First Presidential Debate: Apparently, This Housing Crisis Is Over

......First, in his opening remarks, Obama said "housing has begun to rise." He’s right: the housing market is in better shape today than when he took office in 2009. More surprising was that Romney didn’t argue. Romney did point out several ways that broader economic performance worsened during Obama’s presidency, but the housing market wasn’t one of them. Had Romney wanted to point to the ongoing pain from the housing crisis, he could have pointed to the stubbornly high foreclosure rate in many states or the fact that the market is still not even halfway back to normal. But he didn’t.

Second, Obama and Romney were more focused on preventing the next housing crisis than getting out of this one. They mentioned housing only in their brief debate over government regulation. Obama cited banks’ risky lending practices in the past as reason for why regulation is important for the future. Romney got into the weeds, agreeing that mortgage regulation is important and, in fact, blamed the continued uncertainty over the Dodd-Frank "qualified mortgage" rules** for banks’ {and their} reluctance to lend today.

But that was about it for housing. There’s a long list of what the candidates didn’t say about housing. Not a word about refinancing, principal reductions, selling government-owned foreclosed homes, or the mortgage interest deduction – all hot-button housing issues. Why wasn’t there more debate over housing? Two {Bronx} cheers to the candidates for focusing on rules to prevent the next housing

* President Obama discusses a proposal to help more responsible homeowners refinance their mortgages at today's historically low interest rates. February 1, 2012.

**A "qualified mortgage," is a mortgage meeting standards (with legal & financial measurement parameters)that automatically "count" (qualify) the mortgage as being within a borrower's ability to repay.


Tuesday, October 2, 2012

Underwater Homeowner Vote may turn election

The cheer leading and rah-rah, heard at the presidential conventions, has long since died down. BUT, both candidates left a huge election topic (Housing) unaddressed, and as a result, the door is now wide open, to speak directly on Foreclosures and Underwater Homeowners. It is important that both men address these two (2) related issues instead of repeating & summarizing all the problems by using drone like rhetoric and simply calling it a Housing Crisis.

President Obama - you - and Governor Romney will be competing for votes of millions of homeowners. As presidential candidates, you need to address the housing issues (Underwater Mortgages, Foreclosure, Fraudclosure, principal reduction) especially in big swing states such as Ohio, Colorado, Nevada and Florida. Current estimates show there are between 12 - 16 million underwater homeowners,

3 Americans Speak About Foreclosure & Underwater Housing (OH, NV, CO)

The housing crisis has hit OHIO harder....than but a handful of states. As a result, many OHIO VOTERS are underwater on their mortgages (mortgage debt is greater than value of home) Recent housing market data shows more than a half a million (529,834) OHIO mortgages are underwater. What does that mean?

*1 Million (1,000,258) Ohio eligible voters are underwater
12% of the eligible voters - underwater & 528,834 home mortgages - underwater

*To put these numbers in perspective, the number of Underwater Voters in Ohio (1,000,258) is OVER 1/3 of the total votes cast for the winning presidential candidate in 2008.

please join the New Bottom Line Campaign:

The national campaign has put the agenda and vote of 16 million underwater homeowners squarely on the national political agenda. ‘Home is Where the Vote Is’ is a multi state effort to have the candidates address the issue.
These voters WILL influence and help decide the presidential election outcome!

Tracy Van-Slyke (Director of The New Bottom Line) & Mark Roarty (Ohio FRAUDclosure) take message to the White House

RELATED: Ohio Blogger to White House for Housing Summit
The candidate that fails to seriously address foreclosures, underwater homeowners, and the resulting housing crisis WILL BE the candidate that loses! See below as Tracy Van Slyke shares the importance (below) on the new HUFFPOST - Firsthand

Move video slider bar and begin at 10 minutes in - Shocking Truth Explained

READ Huffingtonpost Business Blog:
Underwater Voters Take Aim at Obama and Romney over Housing
....Neither President Obama nor Governor Romney has proposed the bold solutions needed to address the housing crisis at the root of the American economy’s troubles. Resetting mortgages to fair market value is essential to keeping families in their homes and the recovery of the US economy and job market. Economists from both sides of the political spectrum support it. Resetting those mortgages to fair market value would save the average underwater homeowner $543 per month, pumping $104 billion into the national economy every year. This would create 1.5 million jobs nationally

'Home is Where the Vote Is' is organized by The New Bottom Line, a growing movement of community organizations, congregations, and individuals working together to challenge big bank interests and fight for principal reduction for underwater homeowners. Allies mobilizing underwater voters this season include Rebuild the Dream, Right to the City, Home Defenders League, Ohio FRAUDclosure and the hundreds of thousands of underwater homeowner and voting families.

Our neighborhoods are being destroyed by foreclosed homes. It's our communities that are deprived of hundreds of millions of dollars in revenue because too many homeowners have to unfairly pay the big banks instead of investing in local businesses. Entire communities are being blighted across our state and nation because of the failed policies and the on-going fraudulent practices of the big banks.

MORE: ...Huffington Post Business Blog - by Tracy Van Slyke