Main Street

A Win for Ohio Homeowners

By now it’s been amply documented that one of the big ways the banks have engaged in dubious (if not outright fraudulent) foreclosures is presenting “robosigned” papers in court—paperwork that no one has looked at to determine if the facts are in order, if the bank holds the note on the mortgage, if the homeowner has actually not been paying. And then if that paperwork is challenged, the bank gets the judge to give it a couple days to come up with new paperwork.

Well, no more of that in Ohio’s Cuyahoga county.

Thanks to an obscure ruling from the Cuyahoga County Court of Common Pleas, mortgage lenders in the Cleveland, Ohio area trying to substitute new documents for ones found to be faulty will have 30 days to explain why the cases should not be summarily dismissed. In additions, the signer of any affidavits or documents seeking foreclosure will need the original promissory note in order to prove foreclosure.

Mortgage lenders have sought to merely replace “robo-signed” documents with new substitute documents, in order to keep the foreclosure train rolling.

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In addition to this ruling, the guidance in Cuyahoga County follows some other rulings by state Supreme Courts in New York and New Jersey. It forces counsel for the foreclosing party to attest personally to reviewing the foreclosure file, and that the signer of the affidavit has as well. Failure to provide proper documentation and affidavits to this effect would result in the signer or an officer of the party seeking foreclosure having to come to court to testify about his or her personal knowledge. Sanctions for perjury or contempt of court could spring from that.

What’s more, if no affidavit is signed attesting to the validity of the documents, and a affiant or officer of the party foreclosing has to come to court, they have to walk in with the original note in their possession.

We should have better than this patchwork system, in which judges in New York and Ohio protect the rights of homeowners and force banks to actually prove that they have reasons and the right to foreclose while judges in Florida place an immeasurably higher burden of proof on homeowners and extend every possible chance to banks. But for now this is the system we have, and every judge who rules that banks can’t use fraudulent paperwork to take people’s homes represents a concrete victory for families struggling to keep their homes.

Tags: foreclosures