Today, I filed a reply brief in Ohio Supreme Court Case No.:2011-1362 Federal Home Loan Mortgage Corp. vs. Duane Schwartzwald. The Ohio Supreme Court certified a conflict and asked the parties to brief the issue:
In a mortgage foreclosure action, the lack of standing or a real party in interest defect can be cured by the assignment of the mortgage prior to judgment.
An amicus brief was filed on behalf of Ohio Homeowners andOhiofraudclosure.blogspot.com. You can review the brief by going to the Ohio Supreme Court's website or clicking on the link below http://www.sconet.state.oh.us/tempx/698840.pdf
In the Amicus Brief, I demonstrated that foreclosures require both an interest in the promissory note and an interest in the mortgage, and that the lack of one of these required interests could not be "cured" after the complaint was filed. Civil Rule 17A has some application, but Civil Rule 17A should not be perverted the way the Foreclosure Plaintiffs attempt to use it. I made clear and concise points and filed the brief in order to assist the Court.
The reply brief I filed may be found here: http://www.sconet.state.oh.us/tempx/702641.pdf
The reply brief is very different. Essentially I wrote to accuse the Appellee Bank of filing a brief that was intended to distract the Court's attention and avoid addressing the issue. Appellee Schwartzwald filed a reply brief that addressed the issues and arguments raised by Appellee Bank. Schwartzwald's brief may be found, here: http://www.sconet.state.oh.us/tempx/702618.pdf
I think the reply brief is well written and well argued, but I was left with the feeling that the Bank successfully distracted and avoided the issue. The Bank's brief spent so much time setting up straw figures and knocking them down that I was left feeling like the scarecrow after the flying monkeys were done. In the final analysis, the issue that the Court wanted addressed was given two short paragraphs by the Appellee.
This is yet another example of how Banks, their attorneys, and the Main Stream Media have decided that the best way to address the issue is to make as much noise as possible without saying anything. How many calls have attorneys received from people asking whether they will be helped by the recent National Foreclosure Settlement? How many Homeowners, currently in various stages of foreclosure, are clinging to the hope that the overtly publicized resolution will actually impact their current situation?
Bottom line is this: There has been no settlement, there is no written agreement, the parties have not agreed, and the Courts have not approved anything.
But the main objective was achieved. In all that noise, and just for an instant, people took their eyes off the ball.
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