Ohio Courts' Reluctance to Admit Fraud
Causes 16 years of Foreclosure Litigation
Wright – MSFraud.org | February 23, 2012 PDF
week, Ohio’s 8th District
Court of Appeals heard oral arguments in what must be one of the most
disturbing foreclosure cases in the nation’s history. It is
the case of Richard Davet, and one of the most disturbing aspects of
the case is it should have been dismissed with the bank’s 1996
filing. Subsequent Ohio case law agrees.
1996, NationsBanc (now Bank of America) initiated a foreclosure action
against the Davet family and invoked the jurisdiction of the court by
claiming to be the owner and holder of the loan. Mr.
Davet, who the Wall Street Journal would later describe as prescient,
immediately challenged Bank of America’s standing to sue and
counterclaimed for damages. Davet established Fannie Mae was the owner
and holder. This was more than a decade before the public
would learn about the systemically false ownership claims made by
banks. Without the proper party, the law directs courts to
summarily dismiss the case. And that is where the Davet case
should have ended. The truth should have set Davet free in 1996.
It did not.
of dismissing the complaint, the 1996 court somehow granted judgment
to Bank of America after it was already established they were not the
real party, and therefore the court was without jurisdiction to render
then, Davet has been stuck inside a judicial treadmill, and for
reasons that many consider highly suspect, the seemingly influenced
Ohio courts have vigorously refused to release Davet from the
injustice of its own void ab
For the last 16 years, the Davet’s lives have been manipulated and
controlled by a judgment the law considers mere waste paper.
This should be a crime in itself.
a judge once –shame on you; manipulate judges thousands of times and
you can turn a city into the “Epicenter for Foreclosures”
and 60 Minutes will
come to town to film the damage you caused.
Give Up On Ohio Courts Just Yet
Ohio’s judiciary does not have a highly-regarded history like
Massachusetts, which is poised to rule as soon as this month on a
foreclosure case that could justly lead to a surge in claims from home
owners seeking to overturn unlawful seizures. But Ohio has shown
promise during Davet’s ordeal with widely-cited foreclosure opinions
of its own, such as Wells
Fargo v. Jordan, Wells
Fargo v. Byrd and Deutsche
Bank v. Triplett that
all fit squarely within the four corners of Davet’s case and support
vacating the void ab
-if plaintiff has offered no evidence
that it owned the note and mortgage when the complaint was
filed, it would not be entitled to judgment as a matter of
“in a foreclosure action, a bank that was not the
mortgagee when suit was filed cannot
cure its lack of standing by subsequently obtaining an
interest in the mortgage.”
Jordan opinion also states:
“Several judges have held that a
be dismissed if
the Plaintiff cannot prove that it owned the note and
mortgage on the date the complaint was filed.”
Also encouraging, Davet’s current appeal has been assigned to the
author of Wells v.
Jordan. So there is much confidence this court will not and
cannot make the same mistakes as other Davet courts. Davet
claims he still has legal title and his latest appeal is an action to
get his home back. It is an important issue and Ohio’s former
Attorney General Marc
Dann and attorney Grace
mishandling of wrongful foreclosures became so great it attracted 60
Minutes to come to
Cleveland to report on the devastation these preventable foreclosures
an earlier November 2010 article,
Ohio Chief Magistrate Bucha and other Cuyahoga County judges said that
they fear document foreclosure
defects may give former homeowners a claim on the title that
will affect future sales. That scenario fuels Judge Russo’s
sense of urgency to sort out problems now, she said. “If
courts around the country do not handle this on an individual case
basis and there are later problems with the title, the
courts will have participated with the clouding of the title,”
Russo said. “The potential for harm is so immense at so many
months later, when asked what homeowners should do when they find
fraud and forgery was used to wrongfully take their home, Bucha told
MSFraud that Ohio has legal remedies to reverse the process on an
individual case by case basis. But, the Davet case keeps
confirming Ohio courts are reluctant to disturb these massive frauds
upon its courts, county records and residents.
Audits Overwhelmingly Support Davet’s 1996 Claims
1996, the Internet was basically useless for researching mortgage
fraud. If Davet had posted Bank of America was trying to take
his home and they did not own it, his post may have been flagged as
inappropriate or spam. But today, the truthfulness of that
statement is being uncovered across the country. Just last week,
an audit by San Francisco county officials of about 400 recent
foreclosures there determined that almost
either legal violations or suspicious documentation.
Property Analytics did
an audit for County Registrar John O’Brien and found 75%
of assignments of mortgage were invalid. People are still
trying to get these astonishing figures to fit inside their heads.
I mean, what do you call this level of incompetence? Wall Street
and the mortgage industry are calling it: Succe$$
witnessed this in 1996 and made the conscious decision to ignore it;
repeatedly. Since then, the question has remained - why?
One Ohio judge referenced foreclosures on his Internet bio as: “the
gift that keeps on giving”, as foreclosures paid for the
remodeling of his courthouse. Yes, you can blame the forgeries
and unlawful foreclosures on the banks, but you also have to place
blame on our fact-finders and gatekeepers of justice for getting
it wrong greater than 75% of the time.
the 8th District
Court of Appeals has another opportunity to redeem itself; only this
time it has been matured by the visual damage and alarming statistics.
If it should not, then what is the point of continuing to audit,
study, survey and investigate the biggest foreclosure fraud in our
history if the findings promote nothing more than scandalous
was not supposed to figure out so early in the game that the bank did
not own his home, so when he did, Bank of America had to find a way to
at least make it appear they owned it. Several days after they
filed for foreclosure, the bank’s law firm, Carlisle,
McNellie, allegedly perpetrated a fraud upon the court when it
hastily forged a 1996 assignment - after the fact. But they
named the loan originator who no longer owned Davet’s loan.
The courts apparently didn’t care and Davet’s home later sold.
disturbing result worked so well, it would be repeated in countless
cases until Cleveland eventually became branded as the "Epicenter
for Foreclosures" by the New York Times.
in mind, Davet came along in 1996. The mortgage industry was still
tweaking the concealment features of its new theft by deception scheme
and MERS was soon to make its property record-smashing debut. The
success of this Foreclosure Machine would depend greatly on the
participation of a judiciary that could be relied upon to blindly
rubber-stamp foreclosures. In areas where that reliance worked
best, foreclosures exploded, lives were ruined, and many communities
were left struggling to survive.
new model also leaned heavily on its favorite statistic: 9 out
of 10 people targeted would not know to challenge the banks ownership,
because back then, the public and the courts largely believed if a
bank presented a statement to a court of law, it must be truthful.
Intimidated, 9 out of 10 homeowners would leave the keys
on the counter and walk away.
bank would also walk away… with the free house and all of the
homeowner’s equity. To obtain this windfall, the bank would
write a threat letter to the homeowner; or if necessary, fill out a
computer-generated court form and take it to a court for a stamp of
approval. It worked almost like a conveyer belt, with a
robotic-like judge sitting at the stamping station near the end of the
line. Florida’s Rocket
famous for it. Did it help? No, it propelled Florida into
one of the worst foreclosure states in the country. Illegal
foreclosures flourished in areas where the judiciary and law
enforcement were complicit. Compare that to Nevada. After
it imposed criminal penalties for what the banks and their lawyers
were doing - illegal foreclosures virtually stopped.
Davet’s Evidence Threaten The Foreclosure Machine?
not, then why did Bank of America bring in the “influential” firm
Jones Day, to litigate Davet into the ground? Yes, Jones Day,
litigating for years against a pro se litigant on one house with an
about it. If banks could win possession of a home they do not
own, with a borrower not in material default, and while the homeowners
were living in it… why, they could take anybody’s home.
that is why today we still hear horror stories of banks foreclosing on
homes that didn’t even have a mortgage; foreclosing on the wrong
home, and even one where there wasn’t a home to foreclose.
Curiously, it seems nobody has asked the bank: “Since you clearly
do not own this home, where did you get the “data” contained in
the documents you filed with the court?”
Wall Street banks were betting specific loan pools would default,
while they had their own servicers like EMC, Litton, Ocwen, SPS/Fairbanks,
etc., busy manufacturing the pool’s performing loans into default
and foreclosure. Lists of property data was being shipped to
foreclosure factories (Servicers) and mills (law firms) with
instructions to foreclose on every property on the list. To
foreclose on performing loans, Servicers would simply manufacture a
default by holding or rejecting timely payments and then tack on a
laundry list of fake fees to make it appear the account was in
default. We are still hearing these same stories today.
This fabricated data would falsely claim the homeowner was not paying.
That would be all a judge would need to grant the foreclosure before
the homeowner had a chance to say: “Huh?”
Much Court Influence Do Banks Really Have?
a recent private meeting with Bank of America’s chief of litigation,
Mr. Davet found it odd that he was told at least 10 times: “You
will never beat us in Court.” Was
she saying Bank of America’s board is ready to use whatever
resources it has to make sure Davet doesn’t win? Or did
she just mean their investor’s money?
Will Ohio Address Its Wrongful Foreclosure Problem?
would be the condition of Cleveland today if its courts had taken a
proactive approach to tainted foreclosures when it first noticed the
problem in 1996? Would it have become the foreclosure epicenter?
Will the court now take the results of recent studies, surveys and
audits into consideration? Or will they continue aiding in the
conspiracy of concealment?
institutions continue to soak up judicial resources in perpetuating
this fraud as an alternative to facing the music. As
Ohio’s Judge Christopher Boyko so eloquently stated in his now
famous Opinion in 2007:
institutions seem to adopt the attitude that since they have been
doing this for so long, unchallenged, this practice equates with legal
compliance. Finally put to the test, their weak legal arguments compel
the Court to stop them at the gate.”
Courts may decide it’s time to turn it around and start undoing the
damage. And they certainly have a good place to start.