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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William A. Roper, Jr.
In a HUGE victory for a pro se Ohio defendant on appeal, the Court of Appeals for the 8th District reaffirmed its holdings from the recent Wells Fargo Bank, N.A. v. Jordan and U.S. Bank Natl. Assn. v. Duvall cases in its holding in Deutsche Bank National Trust Company v. Triplett.  The appellate court reversed the trial court's order due to the plaintiff's conspicuous lack of standing where the (forged) assignment introduced into evidence was dated after commencement of the suit and the only evidence in support of the plaintiff's allegation of pre-commencement ownership was a self-serving (and likely perjured) affidavit.  This case is a must read for Ohio defendants and is worthy of reading and citation as instructive by defendants in other jurisdictions.

The case is:
Deutsche Bank Nat'l Trust Co. v. Triplett, No. 94924, COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY, 2011 Ohio 478; 2011 Ohio App. LEXIS 401, February 3, 2011, Released and Journalized.
http://www.sconet.state.oh.us/rod/docs/pdf/8/2011/2011-ohio-478.pdf
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The Ohio Court of Appeals for the 8th District seems to have completely repudiated affidavits as evidence of ownership where the averments are contrary to the primary documents pleaded into evidence (the "Best Evidence").

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See also these related earlier message threads:

"PRO SE litigant WINS appeal against Wells Fargo" (04/01/09 at 12:24 PM)
http://ssgoldstar.websitetoolbox.com/post?id=3399479

"OH Appellate Court Upholds Award of Sanctions Against Plaintiff Lacking Standing At Commencement" (04/25/09 at 04:08 PM)
http://ssgoldstar.websitetoolbox.com/post?id=3443651

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William A. Roper, Jr.
It appears that I neglected to post the news of the rather important Duvall decision handed down by the Ohio appellate court on December 30, 2010.  Duvall was a KEY Ohio evidentiary decision affirming a trial court holding that a plaintiff couldn't overcome the evidence of date of ownership shown by an assignment by the contrary averments within an affidavit in support fo its summary judgment motion.

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

Ohio's 8th District has turned discernibly hostile to the foreclosure plaintiff's fraudulent averments by affidavit within the past year.  The Courts of Common Pleas for Cuyahoga recently imposed an attorney affirmation rule (by order) for foreclosure cases in that juridiction, similar to the affirmation requirements set forth by the NY and NJ court systems.

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William A. Roper, Jr.
On Wednesday, April 6, 2011, the Ohio Supreme Court DENIED a discretionary review of the decision of the Court of Appeals for the Eighth District in United States Bank Nat'l Ass'n v. Duvall.  See:

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-ohio-1618.pdf


This SUSTAINS the decision of the Court of Appeals in that case. 
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William A. Roper, Jr.
My immediate previous post relating to the Duvall case, while factually accurate seems to have misstated what is actually happening within this case.

The appellant, U.S. Bank seems to have employed two approachs in seeking to appeal the decision of the Court of Appeals for the 8th District in Duvall.

First, U.S. Bank filed a motion within the Court of Appeals on January 10, 2011, seeking certification of a conflict between the decision in Duvall and several other cases where standing and/or real party in interest was decided in different ways.

Next, U.S. Bank filed a traditional notice of appeal seeking a discretionary review of the Duvall decision on January 28, 2011. 

The Court of appeals GRANTED the motion for certification of a conflict on January 31, 2011.  This entitled a consideration of the identified conflict by the Ohio Supreme Court.

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The Ohio Supreme Court announced two separate decisions relating to Duvall on Wednesday, April 6, 2011.  In respect of the U.S. Bank notice of appeal and filing seeking a discretionary review, the Court dismissed the appeal in Case No. 2011-0171.  Interestingly, FOUR Supreme Court Justices dissented from the dismissal!

See:

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-ohio-1618.pdf

 

http://www.supremecourt.ohio.gov/Clerk/ecms/resultsbycasenumber.asp?type=3&year=2011&number=0171&myPage=searchbycasenumber%2Easp


But also on Wednesday, the Supreme Court DID certify the conflict previously identified by the Court of Appeals on the U.S. Bank motion in Case No. 2011-0218:

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-ohio-1618.pdf

 

http://www.supremecourt.ohio.gov/Clerk/ecms/resultsbycasenumber.asp?type=3&year=2011&number=0218&myPage=searchbycasenumber%2Easp


The net effect of these two decisions is that the Ohio Supreme Court is going to hear and determine this certified question in respect of the U.S. Bank v. Duvall decision: 

“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?”


See:  http://www.sconet.state.oh.us/tempx/187169.pdf


This will be the most important foreclosure case decided in Ohio this year and the decision may have national significance!  While not binding on other states, the decision will affect the contours of the debate!

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connect the dots
{¶ 12} In the instant case, defendants did not file a motion to dismiss or a motion for summary judgment. Plaintiff argues that we should review this case under a de novo standard, citing to authority on the standard of review for summary judgment. Defendants, on the other hand, argue that the court involuntarily dismissed the instant case under Civ.R. 41(B)(1), which requires an abuse of discretion standard of review. Under either standard, we conclude that the court did not err.

US Bank cannot circumvent the holdings of Well Fargo V Jordan as attempted here.
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William A. Roper, Jr.
Here are a couple of Kentucky cases illustrative of the principle:
An exhibit filed as the foundation of the action controls the averments of the petition.
Kalfus v. Davie’s Ex., 164 Ky. 390, 175 S.W. 652 (Ky. 1915).
Carroll’s Civil and  Criminal Codes of Practice of Kentucky, 6th ed (1919
http://books.google.com/books?id=negSAAAAYAAJ&pg=PA102#v=onepage&q&f=false
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"An exhibit forms a part of the pleading by the express language of the Civil Code of Practice, and it may aid and cure an allegation in the pleading vaguely, indefinitely and defectively stated.  Tackett v. Pikeville Supply & Planing Mill Co., 249 Ky. 835, 61 S.W.2d 881; Newport & Dayton Lumber Co. v. Lichtenfeldt, 72 S.W. 778, 24 Ky.Law Rep. 1969.  It cannot, however, supply an averment which has been wholly omitted. Powers v. Hardesty, 250 Ky. 522, 63 S.W.2d 616.

It has been uniformly held by this court that when an exhibit, filed with and made the basis of an action, shows on its face that the pleading does not state a cause of action, the exhibit may be considered as a part of the pleading in determining the insufficiency of the latter on a demurrer.  Kalfus v. Davie's Ex'r., 164 Ky. 390, 175 S. W. 652; Standard Lumber Co. v. Colwell, Ky., 117 S.W. 286; Gardner v. Continental Ins. Co., 75 S.W. 283, 25 K.L.R. 426.

In Durham v. Elliott, 180 Ky. 724, 203 S. W. 539, 540, a suit was filed under date of September 15, 1916, among other things, to enforce payment of two notes of $208.86 each, neither of which became due and payable until January 1, 1917, and judgment was entered in this suit on November 3, 1916.  The only ground relied upon for a reversal of this judgment was that the petition did not state a cause of action, in that the two notes were shown by the petition not to have been due when the suit was filed and judgment was entered.  Although it was alleged in the petition in this case that the notes were due and payable under a certain agreement claimed to have been entered into by the payor and payee of the two notes, the court held that this allegation was in direct conflict with certain provisions in the notes themselves and the court, on the issue in controversy, held as follows: "An exhibit, if in conflict with the allegations of a pleading, cannot aid the pleading, but may render it bad; and if an exhibit referred to and filed contradicts an allegation of the pleading, the exhibit will control the allegation, unless the exhibit be expressly impeached or explained by the facts stated in the pleading.  Bush v. Madeira's Heirs, 14 B.Mon. 212; Newman's Pleading and Practice (3d Ed.) vol. 1, § 204c; Black v. O'Hara, 175 Ky. 623, 194 S.W. 811.  In the instant case, the exhibits contradict the allegations of the petition, and being unimpeached, it follows that the pleading setting up these two notes did not state a cause of action, and the judgment to that extent is erroneous and must be reversed."

It is clear in the case at bar that there is a fatal variance between the allegations of appellees' petition and the exhibit filed with it; that the pleading just mentioned fails to explain or impeach the exhibit, so that the latter controls the petition; and that, since these facts bring into application the principle of law stated in the Durham case, it follows that the petition, when considered in connection with the exhibit, does not state a cause of action and the demurrer to it should have been sustained."
Shockey v. Pelfrey, 314 Ky. 441, 235 S.W.2d 1017, 1018-9 (Ky. 1951).
http://scholar.google.com/scholar_case?case=2518161354150995975

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Again, the classic mortgage foreclosure application of this principle arises when the plaintiff attaches an alleged promissory note to the complaint or petition, which alleged note is made out in favor of a Lender OTHER THAN the plaintiff.

The complaint or petition typically alleges that the plaintiff is the owner or the holder.  But the attached exhibit expressly shows OTHERWISE.  The attached exhibit is therefore a judicial admission that the plaintiff is NOT the owner or the holder and any subsequent affidavit or other evidence INCLUDING THE PLEADING OF THE ORIGINAL NOTE CANNOT overcome this judicial admission.

Another situation arises where the plaintiff expressly attaches a copy of a forged assignment to the pleadings which assignment shows the transfer of the mortgage AFTER the commencement of the suit.  (This happens less frequently, as the assignment is more commonly attached as an exhibit to the motion for summary judgment or the affidavit of merit supporting the motion for summary judgment.)

Note that the plaintiff COULD amend the pleadings to substitute another different copy of the promissory note.  Generally, only the judicial admissions appearing in LIVE pleadings can be used against the plaintiff.  Very often the plaintiff NEGLECTS to amend the pleadings.

Defendants may also want to file a defensive motion for summary judgment to be decided at the same time as the plaintiff's motion for summary judgment to better assure that the defect associated with pleading an unindorsed note can be used to defeat the foreclosure WITHOUT the plaintiff having an opportunity to further amend the complaint.

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William A. Roper, Jr.
Another earlier Kentucky case:
In a suit founded upon a writing which conflicts with the averments of the pleadings, the writings must control.
Hudson v. Scottish Union & National Ins. Co., 23 Ky.L.Rptr. 116, 110 Ky. 722, 62 S.W. 513, (Ky. 1901)
[cited in Kalfus v. Davie’s Ex., 164 Ky. 390, 175 S.W. 652 (Ky. 1915)]
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William A. Roper, Jr.
Uggh!

I just realized that the previous two posts relating to judicial admissions and the effects of exhibits which contradict pleadings were posted in the WRONG Forum message thread.

These were intended to be posted within thread:

 

"Judicial Admissions -- Exhibits Control Over Allegations In Pleadings: Khan v. Bank of America"

http://ssgoldstar.websitetoolbox.com/post?id=5179188


I will repost this information there.

Apologies to all!
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