Numerous Defenses

I previously wrote and stated that the plan in defending foreclosures was to simply treat a complaint for foreclosure like real litigation. This may have been misinterpreted as a strategy to drive up litigation costs and thereby force the bank to settle. This is not a winning strategy. Who is in a better position to fund litigation than a bank? Instead, by defending the foreclosure complaint numerous defenses emerge. The Lender did not do things properly. The depositor, the custodian, the Trustee, the Servicer did not do things properly. The issue is not the same in every case, but every case has some issue. In addition, the law firms handling the foreclosure complaints are attempting to treat every foreclosure identical in order to process the paperwork as efficiently as possible. The Ohio Supreme Court has warned against discussing the particular facts of a case in a public forum, so I will speak only in general terms. I have successfully prevented Sheriff's Sales from proceeding; received relief from judgment, or I am currently defending foreclosure complaints raising a number of different issues. Here a just a few examples. The Plaintiff asserted that it held the promissory note at a time when Fannie Mae reported that it owned the mortgage note on its website. The Plaintiff sought to foreclose on a mortgage that was assigned to it by way of a power of attorney, but the power of attorney was not recorded with the Recorder's office. The Servicer sent notice of acceleration when the promissory note requires the Lender or the Note Holder to provide notice. Default judgment was granted after the Plaintiff filed a notice of dismissal. Mers assigned a mortgage acting solely as a nominee more than a year after the Lender had been dissolved. In a refiled complaint with a different named Plaintiff, the Plaintiff used the same affiant stating that he had again reviewed business records (were the records the business records of the first plaintiff or the second plaintiff). All of these present major issues for the Plaintiff. All of these major issues are probably repeated throughout the numerous foreclosures now pending. The Plaintiffs and their attorneys are ill equipped to handle the many defenses, and therefore the Lenders are willing to resolve the foreclosure complaint on favorable terms. It is not simply being a thorn; it is not simply driving up litigation costs. Nor is it something that can be taught in a one day seminar. Homeowners facing a foreclosure complaint must seek out an attorney with experience in Civil Litigation.

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