Robo-Signing Allegations Must Be Timely Raised in Foreclosure Case or They’re Waived

Robo-signingLast summer, in GMAC v. Coleff, the Eight District Court of Appeals decided another case involving robo-signing claims made by the borrower. Apart from providing a well written summary of the necessary elements of a Rule 60(B) motion, the decision reaffirms the proposition that claims suggesting that a lender relied on fabricated evidence to establish standing must be raised as a defense to the underlying foreclosure, and not in a Rule 60(B)(3) motion. Continue reading

Case Update: Foreclosure Plaintiff Failed to Satisfy Conditions Precedent to Acceleration

Foreclosure NoticeThe Sixth District of the Ohio Court of Appeals held that although the mortgagee in a foreclosure action had established that it was the holder of the note, it failed to offer any evidence from which the court could find that it had satisfied all conditions precedent to acceleration of the balance due, and thus, summary judgment was erroneously entered. Judgment reversed.

The Sixth District did, however, accept the legal proposition that “possession of [the] original note by [the] servicing agent, not plaintiff-bank, did not deprive the bank of status as holder.”

U.S. Bank, N.A. v. Zokle, 2014-Ohio-636 (6th Dist. Ct. App.)

 

Mortgage foreclosure is debt collection under the FDCPA

Last June, the Sixth Circuit decided that a law firm could be liable, under the Fair Debt Collection Practices Act (“FDCPA”), for stating the wrong identity of the mortgage owner, in a foreclosure complaint. In effect, the Sixth Circuit held that a pre-assignment foreclosure filing could violate the FDCPA. Earlier this month, the same court decided another case involving the application of the FDCPA to judicial foreclosure proceedings. This latest case strongly suggests that misstatements in a foreclosure complaint, and presumably other court filings, subject not only the plaintiff’s attorney to to FDCPA, but the loan servicer client as well. Continue reading