Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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connect the dots
http://www.sconet.state.oh.us/tempx/689655.pdf

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FnDoomed
I have two issues so far...

I'm disappointed that a plaintiff can start an action and then cure its standing problem anytime before judgement.  That's a kick in the head.

I'm also disappointed with the conflicting quotes, one from the judge and another from the UCC Permanent Editorial Board.  To me it seems like the PEB is trying to sneak a very dangerous twist into the UCC that is at odds with the black and white code.

At the bottom of page 6 the judge wrote:

There is, however, an important difference between holders and nonholders. While "holders" are entitled to enforce merely by having possession, a nonholder must show that, in addition to possessing the note, the person who transferred the note was itself a "holder":
If the transferee is not a holder because the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the instrument under section 3-301 if the transferor was a holder at the time of transfer.
So the judge spells out the difference in plain English then follows it up with a quote from the official comments to the UCC.   I agree with that analysis, not in small part because this is the root of my case but it also makes sense. 

Then the PEB insinuates this little bomb into its explanation quoted on page 7 which reads:

How can a person who is not the holder of a note have the rights of a holder?
This can occur by operation of law outside the UCC, such as the law of
subrogation or estate administration, by which one person is the successor to or
acquires another person's rights. It can also occur if the delivery of the note to
that person constitutes a "transfer" (as that term is defined in UCC Article 3, see
below) because transfer of a note "vests in the transferee any right of the
transferor to enforce the instrument." Thus, if a holder (who, as seen above, is a
person entitled to enforce a note) transfers the note to another person, that other
person (the transferee) obtains from the holder the right to enforce the note even if
the transferee does not become the holder (as in the example below). Similarly, a
subsequent transfer will result in the subsequent transferee being a person entitled
to enforce the note.

In my opinion such a "subsequent transfer" would create a transferee of a transferee with rights to enforce, but that position is at odds with what the judge actually wrote and quoted from the UCC official comments.  When transferee #1 received the note, the transferor was a holder and therefore transferee #1 may enforce the note.   When transferee #2 received the note, the transferor (transferee #1) was not a holder, therefore transferee #2 is NOT a person entitled to enforce.

I really take issue with that last sentence from the PEB's "explanation".  It has the potential to allow judges to gloss over all of the indorsement shenanigans being employed by the banks

Comments?
Quote 0 0
Bill
FnDoomed wrote:
I have two issues so far...

I'm disappointed that a plaintiff can start an action and then cure its standing problem anytime before judgement.  That's a kick in the head.

I'm also disappointed with the conflicting quotes, one from the judge and another from the UCC Permanent Editorial Board.  To me it seems like the PEB is trying to sneak a very dangerous twist into the UCC that is at odds with the black and white code.

At the bottom of page 6 the judge wrote:

There is, however, an important difference between holders and nonholders. While "holders" are entitled to enforce merely by having possession, a nonholder must show that, in addition to possessing the note, the person who transferred the note was itself a "holder":
If the transferee is not a holder because the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the instrument under section 3-301 if the transferor was a holder at the time of transfer.
So the judge spells out the difference in plain English then follows it up with a quote from the official comments to the UCC.   I agree with that analysis, not in small part because this is the root of my case but it also makes sense. 

Then the PEB insinuates this little bomb into its explanation quoted on page 7 which reads:

How can a person who is not the holder of a note have the rights of a holder?
This can occur by operation of law outside the UCC, such as the law of
subrogation or estate administration, by which one person is the successor to or
acquires another person's rights. It can also occur if the delivery of the note to
that person constitutes a "transfer" (as that term is defined in UCC Article 3, see
below) because transfer of a note "vests in the transferee any right of the
transferor to enforce the instrument." Thus, if a holder (who, as seen above, is a
person entitled to enforce a note) transfers the note to another person, that other
person (the transferee) obtains from the holder the right to enforce the note even if
the transferee does not become the holder (as in the example below). Similarly, a
subsequent transfer will result in the subsequent transferee being a person entitled
to enforce the note.


In my opinion such a "subsequent transfer" would create a transferee of a transferee with rights to enforce, but that position is at odds with what the judge actually wrote and quoted from the UCC official comments.  When transferee #1 received the note, the transferor was a holder and therefore transferee #1 may enforce the note.   When transferee #2 received the note, the transferor (transferee #1) was not a holder, therefore transferee #2 is NOT a person entitled to enforce.

I really take issue with that last sentence from the PEB's "explanation".  It has the potential to allow judges to gloss over all of the indorsement shenanigans being employed by the banks

Comments?


Doom,

This is an appellant brief WRITTEN BY US BANK WHO ALREADY LOST TWICE.  It would have been far more interesting if we had the appellee's brief posted also, which would have been from the Defendant's position.  Of course the bank is going to try to twist any cases or statutes to fit their needs in the hopes of having the court of appeals overturned.  This decision will have a large impact on foreclosures in OHIO.  Hopefully they will DISAGREE with the brief as you do.   


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Thomas
The problem with this is that the bank is trying to find a way around the basic requirement of showing it owned the note AND the mortgage when it files suit. I sure hope the Duvall side has a better argument in rebuttal because this is dangerous play.

As we have all seen too often, anyone can make up an official looking assignment of mortgage, especially from a bankrupt entity which can not be verified and is usually recorded making it an almost un-deniable piece of evidence. Likewise many notes are submitted in cases with the original payee and no indorsement but later the Plaintiff purports to have found the one assigned in blank.

Either you have it or you don't and if they are allowed to change this, many of us are simply screwed! Usually these entities are nominees who have no right to collect and if they are allowed to just file and "come up with the proof" later, the door is wide open again.

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William A. Roper, Jr.

Quote:
FnDoomed said:

At the bottom of page 6 the judge wrote:

There is, however, an important difference between holders and nonholders. While "holders" are entitled to enforce merely by having possession, a nonholder must show that, in addition to possessing the note, the person who transferred the note was itself a "holder":

If the transferee is not a holder because the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the instrument under section 3-301 if the transferor was a holder at the time of transfer.


FnDoomed:

You seem to be confused about what it is that you are reading.  This is NOT a decision.  This is the Brief of the Appellant, U.S. Bank, in its appeal to the Ohio Supreme Court in the Duvall case.

Other than Bevilaqua, this is probably the single most important case being litigated right now at the appellate level nationally.

And while "connect the dots" should be lauded for alerting us that the brief had been filed, simply posting a link, with no introduction or explanation whatsoever, was a real disappointment!

Frankly, it made my head hurt!

*

I was in the midst of sharing some other information on MERS Milestone Reports yesterday and hadn't gotten back to give the document a good read.

So what you are getting throughout is the Plaintiff-Appellant's spin on the Ohio cases.  Bear in mind that the Appellant already LOST THIS CASE in the Ohio Court of Appeals.  But the Eighth District Court of Appeals has been applying a different standard than other Ohio Districts.

*

I have discussed this principle in posts over the past several years.  Frankly, in numerous cases, the defendant has raised the wrong defensive argument.

Although the standing requirement and the real party at interest rule are related, they are very different.  Standing is often a Constitutional imperative under the open court provision of the state Constitution.  Real party at interest is merely a rule of civil procedure.

Because defendants muddled these ideas in other appellate cases in several other appellate districts, the courts have ruled in those places that the real party at interest rule can be satisfied after commencement.

I have seen Ohio attorney muddle this argument repeatedly for the last several years.  Hopefully, the appellee in Duvall can GET THIS RIGHT.  Otherwise, it is going to be a very tough climate in Ohio in the years to come.  

*

The Duvall case was discussed briefly in the previous thread:

"Ohio Court Reaffirms Standing Rule of Jordan and Duvall in Deutsche Bank Nat. Trust Co v. Triplett"

http://ssgoldstar.websitetoolbox.com/post?id=5080005

 

*

 

See also my previous thread discussing Federal Standing requirements in respect of the Ohio Federal dismissals:

 

"Some Interesting Recent Ohio Cases on Standing"

http://ssgoldstar.websitetoolbox.com/post?id=2393763

 

You also will see my posts anticipating this development dating back three years:

 

"Everhome Mortgage Company v. Rowland -- Ohio's State Courts Begin To Address Standing and Real Party At Interest"

http://ssgoldstar.websitetoolbox.com/post?id=2662451

 

There is also a nice exposition on standing by "Knows About" from 2009:

 

"Any 'standing' cases from Texas?"

http://ssgoldstar.websitetoolbox.com/post?id=3589196

 

The open courts provision of the Ohio Constitution is almost verbatim the same as the provision in the Texas Constitution.

 

See also:

 

"Standing and Jurisdiction Is Dependent Upon the Facts At the Commencement of the Suit"

http://ssgoldstar.websitetoolbox.com/post?id=5335771

 

"Who has the right to order foreclosure? I really need to know!"

http://ssgoldstar.websitetoolbox.com/post?id=1931651

 

"CT Appellate Court Denies Summary Judgment When Plaintiff Lacked Ownership At Commencement of Suit"

http://ssgoldstar.websitetoolbox.com/post?id=3442407

 

"PRO SE litigant WINS appeal against Wells Fargo"

http://ssgoldstar.websitetoolbox.com/post?id=3399479

 

"An Ohio Appellate Case Reinforcing the Holding in Byrd: Bank of N.Y. v. Gindele"

http://ssgoldstar.websitetoolbox.com/post?id=4739654

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William A. Roper, Jr.
See also:

 

"In Landmark KY Case, Pro Se Litigant Defeats Deutsche Bank, Court Find Lack of Standing"

http://ssgoldstar.websitetoolbox.com/post?id=5100756

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William A. Roper, Jr.
It seems to me that we really ought to have a link directly to the decision under review by the Ohio Supreme Court within this message thread.

The case is:
United States Bank Nat'l Ass'n v. Duvall, No. 94714, COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY, 2010 Ohio 6478; 2010 Ohio App. LEXIS 5461, December 30, 2010, Decided, December 30, 2010, Journalized.
http://scholar.google.com/scholar_case?case=2221628582871998788
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FnStupid
Geez.  I shouldn't be allowed to post after midnight...
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We did not want to check in on this topic yesterday... nor draw attention...and for some of the same reasons... mentioned by William A. Roper. However, we now feel compelled to comment!
 
First and foremost "History IS NOT being shaped in Ohio" because some entity (connect the dots) asks you infer anything or connect any dots .....simply by reading....the ONLY item linked in the post (a single link to Appellant brief of U.S. Bank, National Association).
I'll first copy some previous comments and then "weigh in"

 
 William A. Roper Jr. comments:
....You seem to be confused about what it is that you are reading.  This is NOT a decision.  This is the Brief of the Appellant, U.S. Bank, in its appeal to the Ohio Supreme Court in the Duvall case......And while "connect the dots" ....alert{ed} us that the brief had been filed, simply posting a link, with no introduction or explanation whatsoever, was a real disappointment! Frankly, it made my head hurt!

OHIO FRAUDclosure comments:
it should be clear, the reason and intent of the poster (and party represented?). CONSPICUOUS by absence is NO background reference to the REAL issue, or the name and captioned case, nor even the ISSUE before the SUPREME COURT of OHIO. Stated another way - MS FRAUD forum readers - please DO NOT have a "knee jerk"  reaction especially when only being guided to a poster linking a brief submitted and speaking for the TBTF banks. The other BRIEF is not due (from Appllee Duvall) for at least 20 more days. We also understand... at least one Amicus brief is being submitted. We will be posting them.. AT THE APPROPRIATE time, ie - when both sides have submitted arguments(briefs).

Remember the request (by US Bank) to invoke the Ohio Supreme Court was ONLY "purported" to have risen....after having twice failed in previous judicial attempts to foreclose.  First at the local Civil court level on 1/21/2010...US BANK FAILED again in the OHIO 8th Appellate...on 12/30/2010 ...both failures of law are referenced below in the case:


US BANK NATL. ASSN. v. Duvall
{¶ 8} On January 21, 2010, the court dismissed the instant case, stating in its journal entry, in pertinent part, as follows: "The court has reviewed the documents submitted by plaintiff to address the issue of standing. * * * The documents remain devoid of what the court is requesting. * * * The mortgage assignment was * * * dated and subsequently filed with the recorder after the filing of the complaint. * * * As plaintiff has failed to show standing pursuant to Wells Fargo Bank v. Jordan, * * * this case is dismissed in its entirety."

{¶ 14} In Jordan, supra, this court held that "[t]he owner of rights or interest in property is a necessary party to a foreclosure action. * * * Thus, 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 law." Id., ¶¶22-23.

{¶ 15} Accordingly, we conclude that plaintiff had no standing to file a foreclosure action against defendants on October 15, 2007, because, at that time, Wells Fargo owned the mortgage. Plaintiff failed in its burden of demonstrating that it was the real party in interest at the time the complaint was filed. Plaintiff's sole assignment of error is overruled.

It was only AFTER having twice been denied a legal and judicial foreclosure.. that US BANK has claimed a conflict exists with opinions rendered in four (4) other Ohio appellate courts decisions. That ONLY ISSUE before the Ohio Supreme Court is below (from conflict action):

To have standing, as a plaintiff, in a mortgage foreclosure action, must a party show  that it owned the NOTE and the MORTGAGE when the complaint was filed?

We posted in detail here:

SUPREME COURT of OHIO to make Landmark Decision
We plan a detailed follow-up and would be remiss to not point out the failure(s) within the US BANK brief ....to address the issue ...and conflicting cases...in their brief. We will post - and in detail - on this failure!
 
OHIO FRAUDclosure

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Thomas
Well, it looks like Fannie and Freddie are getting involved in this too. Here is the link to their Amici Curiae.
http://www.sconet.state.oh.us/tempx/689733.pdf

I can say one part in particular in paragraph 2 made me chuckle...
"If ownership were to control the enforcement of promissory notes in Ohio, it would pose a significant threat to the liquidity of the instruments, the universality of the commercial law system, and freedom of contract. If owners alone are permitted to sue for foreclosure of promissory notes secured by mortgages, the market for them in Ohio would consist only of the parties willing to take on the substantial burden of personally prosecuting all defaults."

Isn't that the whole point? Why shouldn't they have to "bear the burden" of actually foreclosing? It's almost like an admission that they know the real party that owns the loans is not pursuing the foreclosures. Anyone else?

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connect the dots
In case you have not noticed, Bevelaqua pales in comparison as to importance of this case.....................................the  most important case in the USA today as it relates to foreclosures.

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William A. Roper, Jr.

Quote:
connect the dots said:

In case you have not noticed, Bevelaqua pales in comparison as to importance of this case.....................................the most important case in the USA today as it relates to foreclosures.

I would AGREE that this is the most important pending appellate case in the U.S. in respect to judicial foreclosures.  But Bevilaqua is probably far more important in the non-judicial foreclosure states.
 
Bevilaqua is probably mostly UNIMPORTANT though not inconsequentual in the judicial foreclosure states.  A loss by the foreclosure mills in Bevilaqua adds just a tiny bit of momentum to what is already happening in judical foreclosure states.  The outcome of Duvall could have a really significant effect in ALL other judicial foreclosure states. 
 
On balance, nationally, Duvall is probably still more significant.  But Bevilaqua could influence courts in non-judicial foreclosure states where a higher volume of foreclosure activity is actually happening:  CA, NV, AZ, GA, MS, UT, ID, OR, WA, TX.
 
Both are important for different reasons.
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Note the attorneys who filed this brief.  Lerner Sampson and Rothfuss have a vested interest in the outcome of this case, since they are one of the firms responsible for thousands of Ohio foreclosures.  

They could go the way of the Watson and Shapiro firms if they actually had to show ownership prior to initiating a foreclosure.    

Thomas wrote:
Well, it looks like Fannie and Freddie are getting involved in this too. Here is the link to their Amici Curiae.
http://www.sconet.state.oh.us/tempx/689733.pdf

I can say one part in particular in paragraph 2 made me chuckle...
"If ownership were to control the enforcement of promissory notes in Ohio, it would pose a significant threat to the liquidity of the instruments, the universality of the commercial law system, and freedom of contract. If owners alone are permitted to sue for foreclosure of promissory notes secured by mortgages, the market for them in Ohio would consist only of the parties willing to take on the substantial burden of personally prosecuting all defaults."

Isn't that the whole point? Why shouldn't they have to "bear the burden" of actually foreclosing? It's almost like an admission that they know the real party that owns the loans is not pursuing the foreclosures. Anyone else?

Quote 0 0
William A. Roper, Jr.
It occured to me that a reading of the so-called Ohio conflict cases which are incongruent with the Duvall decision might be helpful or instructive:
U.S. Bank, N.A. v. Bayless, Delaware App. No. 09 CAE 01 004, 2009-Ohio-6115 (Oh. App. 5th, 2009) 
http://www.sconet.state.oh.us/rod/docs/pdf/5/2009/2009-ohio-6115.pdf
http://scholar.google.com/scholar_case?case=6763741739951697138

U.S. Bank, N.A. v. Marcino, 181 Ohio App.3d 328, 2009-Ohio-1178 (Oh. App. 7th, 2009)
http://www.sconet.state.oh.us/rod/docs/pdf/7/2009/2009-ohio-1178.pdf
http://scholar.google.com/scholar_case?case=13111724132211058745

Bank of New York v. Stuart, Lorain App. No. 06CA008953, 2007-Ohio-1483 (Oh. App. 9th, 2007)
http://www.sconet.state.oh.us/rod/docs/pdf/9/2007/2007-ohio-1483.pdf
http://scholar.google.com/scholar_case?case=11092458434597458431

Countrywide Home Loan Servicing, L.P. v. Thomas, Franklin App. No. 09AP-819, 2010-Ohio-3018 (Oh. App. 10th, 2010)
http://www.sconet.state.oh.us/rod/docs/pdf/10/2010/2010-ohio-3018.pdf
http://scholar.google.com/scholar_case?case=14329809349175755358
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Bill

I know it can take several months to get a decision from the court of appeals.  Does anyone have any idea on how long it is realistically going to take to get a decision in this case?  Are we looking at 8 months to a year or does the Supreme Court move a little faster?

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Connect the dots
Call Ohio Attorney General Mike DeWine today and demand that he support Duvall with an amicus brief in direct opposition to the Fannie Mae brief.
Ohio has long been suing Fannie Mae for pension plan losses.

If you can't get Mike at the office call him at home as he welcomes such calls.

614-466-4986 Office

(937) 766-5697 Home

 

http://www.cleveland.com/consumeraffairs/index.ssf/2011/02/ohio_attorney_general_mike_dew.html

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Digger
Also reference Opinion: http://www.msfraud.org/law/lounge/JudgePat/KiddWellsvUSBankOcwenMersAegisMemOpinion.pdf
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In response to BILL:
...I know it can take several months to get a decision from the court of appeals.  Does anyone have any idea on how long it is realistically going to take to get a decision in this case?  Are we looking at 8 months to a year or does the Supreme Court move a little faster?


OHIO FRAUDclosure: from above: The other BRIEF is not due (from Appllee Duvall) for at least 20 more days. We also understand... at least one Amicus brief is being submitted. We will be posting them.. AT THE APPROPRIATE time, ie - when both sides have submitted arguments(briefs).

Additionally, Duvall can (and probably will) ask for a 30 day extension in which to file their brief. Then it is USUALLY an additional couple months that are subject to many variables that can affect the OSC schedule...which I will post later. Everyone, in the state of OHIO (and other state's judicial eyes)..are keenly aware of the importance.. of this decision. Those planning on filing briefs are also very cognizant of this and required time-frames in which to do so.

However, I WOULD NOT take the suggestion from connect the dots:
........Call Ohio Attorney General Mike DeWine today and demand that he support Duvall with an amicus brief in direct opposition to the Fannie Mae brief.......If you can't get Mike at the office call him at home as he welcomes such calls.

Calling our Attorney General at home, is improper!  Period! Call his office and/or email your requests... using the proper channels of communication. If you wish to contact legal-aid groups, attorneys, or your OHIO Congressional leaders ..on this matter..please respectfully do so.. and in a proper manner.
 
State OF OHIO SENATE contacts: (Link Here)
 
State OF OHIO ATTORNEY General: (Link Here)
 
State of Ohio House Member Contacts: (Link Here)

Federal Level:
US Representatives (18) -State of Ohio Contact list: (LINKED HERE)

US Senators (2) - State of Ohio
Brown, Sherrod - (D - OH)
713 HART SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-2315
Web Form: brown.senate.gov/contact/
Portman, Rob - (R - OH)
338 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-3353

Web Form: portman.senate.gov/contact_form.cfm

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connect the dots
Quote from OhioFraudclosure:

" However, I WOULD NOT take the suggestion from connect the dots:
........Call Ohio Attorney General Mike DeWine today and demand that he support Duvall with an amicus brief in direct opposition to the Fannie Mae brief.......If you can't get Mike at the office call him at home as he welcomes such calls."
 
You did not read the link indicating where DeWine has long welcomed calls at home.
 
His office has been suing Fannie Mae for years on behalf of Ohio pension plans who have taken a $20 billion dollar hit.  Now Fannie Mae wants to use lawyers, using fees funded by the taxpayers, to continue the fraud upon Ohio borrowers. 
 
 

 




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Lets stay on topic...and use COMMON SENSE
1) I read the article and in its entirety
2) He did NOT post his personal phone number in the article
3) It is clearly not the PROPER contact method to reach the Attorney General
4) Nor in anyway ..an invitation to do so

From Cleveland dot Com article:  Last year alone, 31,000 consumers complained to the office about car sales and repairs, unfair debt collection attempts, tricks in cell phone plans and the like. DeWine supports Cordray's decision to allow the consumer section to accept fraud complaints from nonprofits and mom-and-pop businesses, even though lawyers both in and out of the office were divided about whether the attorney general has statutory authority to do so. AND.. By law, the attorney general has to pair up with a county prosecutor to bring a criminal case...

After four years of private life, DeWine is clearly glad to be back in office, even if the view from his official desk is a little unnerving. He has never taken his number out of the Cedarville phone book, he says, not even when he was in the U.S. Senate. "People look to me to solve problems," he says. "I get calls at home. I get people stopping me at the grocery store. That's fine. If you're in public office a long time, that's what you expect, that's part of what you do. That's good." and "I'll be sad when they stop calling me."

OHIO FRAUDclosure: In the article he insinuates that he would miss the local and personal contact and states that HE didn't remove his number from the local phone book.... That is NOT an invitation ...much less for any of the 31,000 people.... to call him at home..and as you said DEMAND THAT HE SUPPORT DUVALL on this particular issue. Nor is there any mention If you can't get Mike at the office call him at home as he welcomes such calls

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connect the dots
to ohio fraudclosure

Let us all know when Mr. DeWine calls you back after leaving your number at his office.

The article speaks for itself as to the DeWine's reasoning in having his number in the white pages.

We know DeWine represents pension plan investors. What about borrowers victimized? What is he doing about it? Try your strategy and report back to us (victims).

In the meantime borrowers should call office first and home second as originally suggested.


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