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.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
Curious
So here's the deal...
The Magistrate in my case made the following order...

The Magistrate has determined that the case may be suitable for mediation. The case is referred to the Court's Foreclosure Mediation Program for further evaluation. All Discovery and Motion practice is stayed pending the Mediators Final Determination of suitability of the case for mediation.

Of course time has passed, documents were sent, and a mediation date has been set. Obviously that would mean the Mediator has made a final determination of the suitability of the case for mediation, right?

Well then if the pending decision that the stay was based upon was reached, would not the stay be lifted?

Silly me filed a Motion to Dismiss which took alot of time and effort to spell out to the Court why the case should be dismissed and quoted 129 cases to back up the reasons. When I checked the Docket today I found 2 entries that really p'd me off...

"Since the Court has not set a hearing of the Defendants motion to dismiss, the notice of hearing for defendants motion to dismiss filed on...date...is stricken."

-and-

"Since it violates the courts motion practice stay pending mediation, the motion to dismiss is denied and may be refiled when mediation concludes."

There are damn good reasons we should not be going to mediation including standing and ownership of the note. I have brought this up over and over and the judge keeps brushing it off, even with proof.

So what can I do now? Any advice is greatly appreciated. BTW I am in Ohio and the cases are all the ones from the supreme court decisions you all have read about.
Quote 0 0
Moose
Curious wrote:
So here's the deal...
The Magistrate in my case made the following order...

The Magistrate has determined that the case may be suitable for mediation. The case is referred to the Court's Foreclosure Mediation Program for further evaluation. All Discovery and Motion practice is stayed pending the Mediators Final Determination of suitability of the case for mediation.

Of course time has passed, documents were sent, and a mediation date has been set. Obviously that would mean the Mediator has made a final determination of the suitability of the case for mediation, right?

Well then if the pending decision that the stay was based upon was reached, would not the stay be lifted?

Silly me filed a Motion to Dismiss which took alot of time and effort to spell out to the Court why the case should be dismissed and quoted 129 cases to back up the reasons. When I checked the Docket today I found 2 entries that really p'd me off...

"Since the Court has not set a hearing of the Defendants motion to dismiss, the notice of hearing for defendants motion to dismiss filed on...date...is stricken."

-and-

"Since it violates the courts motion practice stay pending mediation, the motion to dismiss is denied and may be refiled when mediation concludes."

There are damn good reasons we should not be going to mediation including standing and ownership of the note. I have brought this up over and over and the judge keeps brushing it off, even with proof.

So what can I do now? Any advice is greatly appreciated. BTW I am in Ohio and the cases are all the ones from the supreme court decisions you all have read about.


Mediation is a touchstone on the way to court. The court wants to see mediation before it has to actually listen to a case and make a ruling. They are afraid of setting precedent against the predators so they keep pushing victims into settlement conferences.

It's a hurdle you have to get over.

Moose

Quote 0 0
Curious

Thanks Moose. I'm just fired up, and you're probably right. It just sucks that you have to endanger yourself to be heard. Hmmmm....Extreme Litigation.... Got me thinkin X Games...lol.

Quote 0 0
Don't sweat the mediation.  Go to it when the date is set and tell the mediator your case.  I don't know about your jurisdiction but in Arizona mediation usually works like this.

All the parties shake hands with the Mediator and then go to seperate rooms.  The mediator listens to one side then the other.  He/She will try to find a common ground and may or may not bring the parties back into the same room if there seems to be a consensus.

It does not sound like your mediation is binding.  The Mediator will send a confidential report to the Judge.  The Judge will then decide if the case should continue in mediation or he then rules that Motion practive starts up again.  Nothing in the report can later be used against you, or the other side, in Court.  In most cases you won't have access to the mediators report anyway.

The docket entries themselves just reflect that you ignored the Order of the Court to stay motion practice.  To ignore an Order you do so at your own peril.  If the Judge were to get really angry he could sanction you by doing things like striking or dismissing your case.

It's best to follow the rules even though you are certainly anxious to have your day in Court.

Treat the Mediator with courtesy and respect.  In most cases Mediators are lawyers who volunteer their time.  Just lay out your case.  It will be informal but be prepared to explain your position.


Quote 0 0
Moose
It's also important to understand the differences between mediation and a trial.

The mediator, as Ken points out, is almost always an attorney or at least a trained professional, but they do not have the same role as a judge. They cannot make rulings on legal matters. They won't provide legal advice or answer legal questions. In fact, they don't even decide on what is or isn't evidence. Their objective is to get the two parties to come to an agreement so the case can be settled prior to actual trial.

The key point is, both parties have to agree. There is considerable effort put in on the part of the mediator to get the two sides to settle, but they cannot make a ruling on something like the legal ownership of the note to get the other side to concede the point. It's a back-and-forth process. One party makes an offer, the other counters and so on. If it works, a written agreement has to be drafted, and even that can become an issue. Because they're attorneys, they will want to draft the agreement, but you have to be VERY careful - the mediator can't give you legal advice and you'll be faced with a multi-page legal document written by your opponent that is supposed to reflect what was agreed to. You may find after a thorough reading that it doesn't, and you'll have to insist that it be changed. The mediator can and will intervene to make obvious corrections, but again, cannot give you what amounts to be legal advice.

If the parties don't come to an agreement, the mediator reports that a settlement could not be reached and the court issues an order to proceed. And remember the court may even order another settlement conference after more evidence is heard and the judge realizes the other party will appeal if they lose.

Some things they will probably insist on:
-Protection from further litigation.
-Confidentiality.
-Any payment to be made to you to be paid over time to ensure the confidentiality.

Keep your eyes and ears open.

Moose



Quote 0 0
Your goal is to get the judge to rule on your motion to dismiss for lack of standing. You can go through the mediation but do not be be eager to settle.
If your motion has the recent cases re lack of standing the judge has to follow precedent and there is a decent chance of ruling for you. The other side does not want your motion to be ruled on given the recent trend of rulings on lack of standing etc. They already know your strategy since you filed the motion to dismiss. If there is a settlement offer you should ask for some time to get an attorney to review it, but your goal is to get your motion ruled on. Even if the judge rules against you you are no worse off and can always settle later on in the process. So go through the mediation process, but it will soon be obvious to the judge and everyone involved that there will be no mediation on this issue, but the court has to have you two parties at least try to settle.   


Quote 0 0
Write a reply...