UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ANNOUNCES
BETTY WALLACE
v.
v.
WASHINGTON MUTUAL BANK F.A.
WELLS FARGO BANK N.A.,
Defendants
LERNER, SAMPSON & ROTHFUSS,
Defendant-Appellee
Appeal from the U. S. District Court for the Southern District of Ohio at Cincinnati.
Appeal from the U. S. District Court for the Southern District of Ohio at Cincinnati.
(Download Opinion - HERE)
A major victory at the federal level reverses a bad decision originally decided in the southern district of Ohio - Cincinnati - which is coincidentaly the home & headquarters of Predator Drone & Foreclosure Mill law firm -Lerner Sampson Rothfuss (LSR)
The court held:
A major victory at the federal level reverses a bad decision originally decided in the southern district of Ohio - Cincinnati - which is coincidentaly the home & headquarters of Predator Drone & Foreclosure Mill law firm -Lerner Sampson Rothfuss (LSR)
The court held:
The single issue before us is whether the filing of foreclosure action by the law firm claiming ownership of the mortgage by its client Washington Mutual constitutes a "false, deceptive or misleading representation" under the Fair Debt Collection Practices Act {FDCPA} when the bank has not received a transfer of the ownership documents. We hold that the complaint states a valid claim and reverse the dismissal of the case.
Plaintiff alleges that the statement in the foreclosure complaint that Lerner, Sampson filed against her on behalf of Washington Mutual contained the false statement that Washington Mutual was the holder of her mortgage. District courts have decided, and we agree, that a clearly false representation of the creditor’s name may constitute a "false representation to collect or attempt to collect any debt" under Section 1692e.
Hepsen v. J.C. Christensen and Assocs., Inc., No. 8:07-CV-1935-T-EAJ, 2009 WL 3064865, at *5 (M.D. Fla. Sept. 22, 2009) (imposing liability based on a statement incorrectly identifying the name of a creditor comports with the purposes of the Act); Blarek v. Encore Receivable Mgmt., Inc., No. 06-C-0420, 2007 WL 984096, at *15 (E.D. Wis. Mar. 27, 2007) (same).
Lerner, Sampson does not dispute that the foreclosure complaint identifies Washington Mutual as the actual holder of plaintiff’s mortgage, but claims that Ohio law permits Washington Mutual to anticipate that it would become the title holder after the foreclosure action was initiated but before it becomes final. We disagree that the issue of standing in Ohio, even if resolved in Lerner, Sampson’s favor, has any bearing on whether misidentifying a creditor is materially misleading under the Fair DebtCollection Practices Act.
HUGE footnote (below) referencing outcome of pending OHIO SUPREME COURT: Federal Home Loan Mortg. Corp. v. Schwartzwald
HUGE footnote (below) referencing outcome of pending OHIO SUPREME COURT: Federal Home Loan Mortg. Corp. v. Schwartzwald
1The Ohio Supreme Court allowed an appeal and stayed briefing in plaintiff’s state case against WASHINGTON MUTUAL, Wallace v. Washington Mutual Bank N.A. ..2011-Ohio-6556..(Dec 21, 2011)....pending resolution of Fed. Home Loan Mort. Corp. v. Schwartzwald, 194 Ohio App. 3d 644, 2011-Ohio-2681, 957 N.E.2d 790 (Ohio Ct. App.), motion to certify and appeal allowed by 129 Ohio St. 3d 1488, 2011-Ohio-5129, 954 N.E.2d 661(Ohio Oct 5,2011)(Consolidating cases and certifying a conflict in the Ohio appellate courts on the issue of whether in order to have standing as a plaintiff in a mortgage foreclosure action, a party must show that it owned the note and the mortgage when the complaint was filed.). Should the Ohio courts decide that a potential mortgagee may anticipate transfer of the note and mortgage and bring valid foreclosure proceedings in advance, the district court will have to decide the impact of such a holding on Wallace’s claim for damages under the Fair Debt Collection Practices Act. We do not agree, however, with the district courts of this Circuit that have treated the debate in Ohio over standing to bring a foreclosure action as dispositive of whether a statement was materially misleading under the Act. See, e.g., Whittiker v. Deutsche Bank Nat’l Trust Co., 605 F. Supp.Kline v. Mortg. Elec. Sec. Sys., No. 3:08cv408, 2010 WL 1133452, at *7 (S.D. Ohio Mar. 22, 2010). Certainly, should the Ohio courts decide that Washington Mutual did not have standing to bring the foreclosure action in the first place, the materiality of the false statement of ownership would be patent. However, even if Ohio holds the opposite, the Act protects the unsophisticated consumer from false statements tending to mislead or confuse—whether Washington Mutual may ultimately succeed in an Ohio court in its foreclosure action has no bearing on whether the initial false statements misled Wallace. The issue arises in the shadow of the recent subprime mortgage crises in which financial institutions are charged with encouraging reckless lending standards and rapid transfer and sale of subprime mortgages so as to profit from the mass securitization and sale of the mortgages
Slipping computer generated, shoddy and manufactured paperwork past lower court judges (old, out-of-touch, too busy) on a “fast track” to foreclosure…used to be easy! The judicial machinery spun out of control when directed by large Predator Drone Foreclosure Mills and their "Bench Warmers"(local counsel used to foreclose) seeking the revered “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 ...which unfortunately were asleep-at-the-wheel. (Link to report).
However, recent attention from the OCCUPY movement, highly regarded foreclosure defense attorneys and bloggers (here, here, here) have turned the spotlight on the fraudulent and criminal behavior (of the Foreclosure Mills & Servicers) The robo-signing clearly showed that documents, legally needed to initiate foreclosures, were created and falsely executed. The attention has finally started to drown out the traditional lap dog media trained in "Bank-Speak."
Predator Drone Foreclosure Mills:
The mindless and legally void factory approach used to methodically ram-rod thousands of FRAUDclosures through the judicial machinery of Ohio’s 88 county Civil Court system appears to have finally hit a BUMP. Proof: recent published decisions coming out of some of Ohio's twelve Appellate Courts show that some judges are actually waking-up from a deep legal sleep. The Appellate courts have been routinely overturning and dismissing cases which had improperly awarded Summary Judgment to pretend lenders, bogus trust & trustees, and improper plaintiff parties.
Read full deposition - with admissions - of LSR employee Shellie Hill
Read full deposition - with admissions - of LSR employee Shellie Hill
