I want to weigh in here and come down similar to
what Ed Cage has mentioned in terms of the difficulty
and complexity of PROVING FRAUD. This is FAR HARDER to
actually PROVE than seems to be being suggested. And
frankly what you ahve related to us thus far does NOT
sound to me like a very good fraud case AT ALL.
This is NOT to say that I do NOT think that your attorney
should PLEAD FRAUD. This would give a very nice basis
for discovery and set a foundation for a fraud defense if
good evidence DOES materialize. But I really do NOT
think this is your STRONGER argument.
It seems to me that you have a much stronger defense to be
made predicated on two other equitable concepts: estoppel
and the clean hands doctrine.
One dictionary defines estoppel as:
n. a bar or impediment (obstruction) which precludes a
person from asserting a fact or a right or prevents one
from denying a fact. Such a hindrance is due to a person's
actions, conduct, statements, admissions, failure to act
or judgment against the person in an identical legal case.
Estoppel includes being barred by false representation or
concealment (equitable estoppel), failure to take legal
action until the other party is prejudiced by the delay
(estoppel by laches), and a court ruling against the party
on the same matter in a different case (collateral estoppel).
John Bouvier's Law Dictionary, 6th ed (1856) defines Estoppel
in this way:
ESTOPPEL, pleading. An estoppel is a preclusion, in law,
which prevents a man from alleging or denying a fact, in
consequence o his own previous act, allegation or denial
of a contrary tenor. Stepb. Pl. 239. Lord Coke says, " an
estoppel is, when a man is concluded by his own act or
acceptance, to say the truth." Co. Litt. 352, a. And
Blackstone defines "an estoppel to be a special plea in bar,
which happens where a man has done some act, or executed
some deed, which estops or precludes him from averring any
thing to the contrary. 3 Cora. 308. Estoppels are odious in
law; 1 Serg. & R. 444; they are not admitted in equity
against the truth. Id. 442. Nor can jurors be estopped from
saying the truth, because they are sworn to do so, although
they are estopped from finding against the admission of the
parties in their pleadings. 2 Rep. 4; Salk. 276; B. N. P. 298;
2 Barn. & Ald. 662; Angel on Water Courses, 228-9. See Co.
Litt. 352, a, b, 351, a. notes.
[See the full definition with elaboration at the link above]
There is a very basic write-ups on Estoppel at the
Wikipedia web site at:
I would call your particular attention to the discussion
relating to "Estoppel by representation of fact". Consider
the cited definition taken from Wilken and Villiers, The Law
of Waiver, Variation and Estoppel, 2nd ed, Oxford: 2003,
at para 9.02:
An estoppel by representation [of fact] will arise between A
and B if the following elements are made out. First, A makes
a false representation of fact to B or to a group of which B
was a member. [It is not necessary to demonstrate A knew that
the representation was untrue.] Second, in making the
representation, A intended or [in the alternatively,] knew
that it was likely to be acted upon. Third, B, believing the
representation, acts to its detriment in reliance on the
representation. [It must have been reasonable to rely on
the representation.] Fourth, A subsequently seeks to deny the
truth of the representation. Fifth, no defence to the estoppel
can be raised by A.
"The Supreme Court has recognized that, under federal law,
"estoppel is an equitable doctrine invoked to avoid injustice
in particular cases." n30
n30 Heckler v. Community Health Servs. of Crawford County, Inc.,
467 U.S. 51, 59, 104 S. Ct. 2218, 81 L. Ed. 2d 42 (1984).
Minard v. ITC Deltacom Communs., Inc., No. 04-30230 , UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, 447 F.3d 352;
2006 U.S. App. LEXIS 9721; 152 Lab. Cas. (CCH) P35,123; 87
Empl. Prac. Dec. (CCH) P42,343; 11 Wage & Hour Cas. 2d (BNA)
609, April 18, 2006, Filed.
You will want to look to OHIO cases on estoppel to find
authority in support of your case.
Clean Hands Doctrine
Similarly, it would appear to me that you can make a much
stronger argument based upon the equitable defense known
as the "Clean Hands Doctrine". The basic idea embraced by
the Clean Hands Doctrine is that "equity must come with
It is also closely related to the equitable maxim "he who
seeks equity, must do equity".
There is a very basic write-up on this doctrine at the
Wikipedia web site at:
Like estoppel, the Clean Hands Doctrine is arises from English
common law and older than the United States!
NOr is this an arcane concept of English Common Law without
support in the United states. Consider this express instruction
and guidance from the United States Supreme Court in 1945:
"The guiding doctrine in this case is the equitable maxim
that "he who comes into equity must come with clean hands."
This maxim is far more than a mere banality. It is a self-imposed
ordinance that closes the doors of a court of equity to one
tainted with inequitableness or bad faith relative to the matter
in which he seeks relief, however improper may have been the
behavior of the defendant. That doctrine is rooted in the
historical concept of court of equity as a vehicle for
affirmatively enforcing the requirements of conscience and
good faith. This presupposes a refusal on its part to be "the
abettor of iniquity." Bein v. Heath, 6 How. 228, 247. [*16]
Thus while "equity does not demand that its suitors shall
have led blameless lives," Loughran v. Loughran, 292 U.S. 216,
229, as to other matters, it does require that they shall have
acted fairly and without fraud or deceit as to the controversy
in issue. Keystone Driller Co. v. General Excavator Co., 290
U.S. 240, 245; Johnson v. Yellow Cab Co., 321 U.S. 383, 387;
2 Pomeroy, Equity Jurisprudence (5th Ed.) §§ 379-399.
This maxim necessarily gives wide range to the equity court's
use of discretion in refusing to aid the unclean litigant. It is
"not bound by formula or restrained by any limitation that tends
to trammel the free and just exercise of discretion." Keystone
Driller Co. v. General Excavator Co., supra, 245, 246. Accordingly
one's misconduct need not necessarily have been of such a nature
as to be punishable as a crime or as to justify legal proceedings
of any character. Any willful act concerning [*17] the cause of
action which rightfully can be said to transgress equitable
standards of conduct is sufficient cause for the invocation of
the maxim by the chancellor.
Moreover, where a suit in equity concerns the public interest
as well as the private interests of the litigants this doctrine
assumes even wider and more significant proportions. For if an
equity court properly uses the maxim to withhold its assistance
in such a case it not only prevents a wrongdoer from enjoying
the fruits of his transgression but averts an injury to the public.
The determination of when the maxim should be applied to bar this
type of suit thus becomes of vital significance. See Morton Salt
Co. v. Suppiger Co., 314 U.S. 488, 492-494."
Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., No. 377, You will want to look to OHIO cases on the "Clean Hands Doctrine"
SUPREME COURT OF THE UNITED STATES, 324 U.S. 806; 65 S. Ct. 993;
89 L. Ed. 1381; 1945 U.S. LEXIS 2797; 65 U.S.P.Q. (BNA) 133,
January 31, February 1, 1945, Argued , April 23, 1945, Decided.
to find authority in support of your case.
Others in this forum who are litigating cases in judicial foreclosure
states should be cognizant that foreclosure is an equitable remedy
and therefor the "Clean Hands Doctrine" should almost ALWAYS be
pled where misconduct or wrongdoing exists on the part of the
foreclosing entity or their agent!
* * *
Bear in mind that in most states, defenses may be pled in the
ALTERNATIVE. That is, you need NOT choose whether to argue
that there is fraud, estoppel by representation of fact OR unclean
hands. You may alternatively argue ALL OF THESE and it I were
in your position that is precisely what I would DO.
The information above if NOT LEGAL ADVICE. Rather, these are
some LAY MUSINGS by a NON-LAWYER. But I would ENCOURAGE
you to read up on these concepts and DISCUSS THESE DEFENSES
WITH YOUR LAWYER.
* * *
Finally, I want to express some DISMAY at the very MESSAGE THREAD
topic. The CORRECT AND BEST WAY to FIND EVIDENCE is through DISCOVERY. If your DISCOVERY is NOT already now under way, you
NEED TO GET IT STARTED. NO ONE IN THIS FORUM HAS ANY EVIDENCE
TO SHARE RELATING TO THE SPECIFIC FACTS OF YOUR CASE. YOU
NEED TO DEMAND AND GET THAT EVIDENCE FROM YOUR PLAINTIFF.
I DO HAVE SOME VERY IMPORTANT EVIDENCE OF ONGOING EVIDENCE
FABRICATION IN OHIO, BUT YOUR LAWYER HAS NOT CONTACTED ME.