Mortgage Servicing Fraud
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William A. Roper, Jr.
While it is most energizing to celebrate cases where a foreclosure defendant wins an appeal or a dismissal, there are also occasions when it is useful to learn from the mistakes of others.

Unfortunately, the recent Ohio case of Heller v. U.S. Bank seems to be a case where the defendant seems to have made some particularly serious mistakes at the outset and then was unable to recover from these mistakes in further proceedings.

The case is:
Heller v. US Bank, C.A. No. 25493, COURT OF APPEALS OF OHIO, NINTH JUDICIAL DISTRICT, SUMMIT COUNTY, 2011 Ohio 1514; 2011 Ohio App. LEXIS 1309, March 30, 2011, Decided.
http://www.sconet.state.oh.us/rod/docs/pdf/9/2011/2011-ohio-1514.pdf
I have observed repeatedly in other threads that it is singularly difficult to overturn a default judgment taken against you when the process has been properly served.

I have also pointed out that the Rules of Civil Procedure of most jurisdictions set forth that certain causes of action available to a defendat based upon the same set of facts as those forming the basis for a suit are required to be set out as counterclaims in that suit. 

When a plaintiff sues and the defendant fails to answer, very often, not only does the defendant LOSE the suit, but the defendant often also has implicitly waived the various other possible counterclaims which might be otherwise available against that plaintiff, or sometimes even others.

In the Heller case, the borrower-defendant allowed just such a default judgment to be taken.  Heller then later brought a suit alleging some other wrongdoing in respect of the foreclosure.  The purported mortgage investor U.S. Bank then argued res judicata and pointed out that Heller had waived her counterclaims.

There is another lesson in the case for pro se litigants with respect to the appellate rules.  There are very precise and strict rules enforced by the courts as to the format of the appellant's brief and the appellee's brief.  These are ignored at the litigant's peril.

In order to succeed on appeal, the appellant needs some valid appellate issues.  These almost always have to be raised in the trial court to be preserved for appeal.  Then the appellant needs to articulate the issues and show the court within the brief precisely where this argument was raised in the record below and direct the court's attention to the place in the record where the evidence might be found to support that argument.

One CANNOT simply tell the court that one thinks the decision is wrong and then challenge the court to read the entire record to find some error.  The arguments need to be well structured and documented, logical and CONSISTENT WITH THE APPELLATE RULES.

Here Heller probably had no case whatsoever due to her failure to answer the original suit.  But IF Heller had some valid appellate issue, she squandered her opportunity for redress by not carefully reading and following the Rules.

READ THE RULES.  READ THE CASES ON THE RULES.  THEN READ THE RULES AGAIN!

Please understand that I am NOT mocking or making fun of Ms. Heller.  To the contrary, I would encourage ALL to say a prayer for her.  But perhaps some other litigants can save their home by reading this case and learning from her mistakes!
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Sandy
Mr. Roper, you are such a gentleman, kind and considerate and one of the most selfless people I have ever encountered. Your dedication to this forum is beyond words of gratitude. But to start, let me again thank you. I pray that your life is full of God's richest and kindest blessings.


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