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
Judge David D. DOWD, Jr.'s citation of an Ohio Supreme Court case on standing in his opinion on in Deutsche Bank National Trust Company v. McCarthy [Filed 10/8/2007; Case No. 1:2007cv03071] raises the issue of authority in support of standing requirements in Ohio State courts.  (Since access to Federal Courts is based upon Federal rules of standing and Article III Constitutional considerations, Judge DOWD's mention of the Ohio case of State ex rel. Jones v. Suster is really simply dicta.) 

Notwithstanding (no pun intended), it may be helpful to Ohio state court litigants to begin reading cases on Ohio standing if they haven't already done so.  Below is a brief survey of several very recent cases that may serve as a starting point for an investigation and unserstanding of Ohio law in this regard:
  • Performing Arts Sch. of Metro. Toledo, Inc. v. Wilkins, No. 2003-0114 , SUPREME COURT OF OHIO, 104 Ohio St. 3d 284; 2004 Ohio 6389; 819 N.E.2d 649; 2004 Ohio LEXIS 2857, June 8, 2004, Submitted , December 8, 2004, Decided.
  • Pratts v. Hurley, Nos. 2003-0392 and 2003-0560 , SUPREME COURT OF OHIO, 102 Ohio St. 3d 81; 2004 Ohio 1980; 806 N.E.2d 992; 2004 Ohio LEXIS 1017, December 3, 2003, Submitted , May 5, 2004, Decided.
  • State ex rel. Jones v. Suster, No. 97-1231 , SUPREME COURT OF OHIO, 84 Ohio St. 3d 70; 1998 Ohio 275; 701 N.E.2d 1002; 1998 Ohio LEXIS 3221, January 13, 1998, Submitted , December 2, 1998, Decided.
  • Gabel v. Miami E. Sch. Bd., Appellate Case No. 07-CA-16, COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MIAMI COUNTY, 2007 Ohio 6590; 2007 Ohio App. LEXIS 5765, December 7, 2007, Rendered.
  • Koehring v. Ohio State Dep't of Rehab. & Corr., No. 06AP-396 , COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY, 2007 Ohio 2652; 2007 Ohio App. LEXIS 2463; 183 L.R.R.M. 2123, May 31, 2007, Rendered.
  • Newman v. Enriquez, Case No. 06CA3091 , COURT OF APPEALS OF OHIO, FOURTH APPELLATE DISTRICT, SCIOTO COUNTY, 171 Ohio App. 3d 117; 2007 Ohio 1934; 869 N.E.2d 735; 2007 Ohio App. LEXIS 1741, April 17, 2007, Filed , Discretionary appeal not allowed by Newman v. Enriquez, 2007 Ohio 4884, 873 N.E.2d 1316, 2007 Ohio LEXIS 2366 (Ohio, 2007).
  • Bank of N.Y. v. Stuart, C. A. No. 06CA008953 , COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, LORAIN COUNTY, 2007 Ohio 1483; 2007 Ohio App. LEXIS 1387, March 30, 2007, Decided.
  • Wash. Mut. Bank v. Novak, No. 88121 , COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY, 2007 Ohio 996; 2007 Ohio App. LEXIS 990, March 8, 2007, Released.
  • Haley v. Hunter, C.A. No. 23027 , COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, SUMMIT COUNTY, 2006 Ohio 2975; 2006 Ohio App. LEXIS 2863, June 14, 2006, Decided.
  • City of Cleveland v. Martin, No. 85374 , COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY, 2005 Ohio 6482; 2005 Ohio App. LEXIS 5844, December 8, 2005, Date of Announcement of Decision.
  • RPM, Inc. v. Oatey Co., C.A. Nos. 3282-M, 3289-M , COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, MEDINA COUNTY, 2005 Ohio 1280; 2005 Ohio App. LEXIS 1251, March 23, 2005, Decided , Stay granted by RPM, Inc. v. Oatey Co., 105 Ohio St. 3d 1559, 2005 Ohio 2447, 828 N.E.2d 115, 2005 Ohio LEXIS 1115 (2005)Motion granted by RPM, Inc. v. Oatey Co., 106 Ohio St. 3d 1408, 2005 Ohio 3154, 830 N.E.2d 342, 2005 Ohio LEXIS 1255 (2005)Discretionary appeal not allowed by RPM, Inc. v. Oatey Co., 2005 Ohio 4605, 2005 Ohio LEXIS 1924 (Ohio, Sept. 7, 2005).
  • State ex rel. Ralkers, Inc. v. Liquor Control Comm'n, No. 04AP-779 , COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY, 2004 Ohio 6606; 2004 Ohio App. LEXIS 6011, December 9, 2004, Rendered.
Each of these EXCEPT for State ex rel. Jones v. Suster is available for FREE online viewing through LexisOne (http://www.lexisone.com). 

I found this language in Newman v. Enriquez to be interesting:
"[B]efore an Ohio court can consider the merits of a legal claim, the person seeking relief must establish standing to sue." Ohio Contractors Assn. v. Bicking (1994), 71 Ohio St.3d 318, 320, 1994 Ohio 183, 643 N.E.2d 1088.  Whether a party has standing depends upon whether he has a "personal stake in the outcome of the controversy."  Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 75, 25 Ohio B. 125, 495 N.E.2d 380, certiorari denied in Sticklen v. Middletown (1987), 479 U.S. 1034, 107 S. Ct. 883, 93 L. Ed. 2d 837.  The requirement that a party have standing ensures that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Sierra Club v. Morton (1972), 405 U.S. 727, 732, 92 S. Ct. 1361, 31 L. Ed. 2d 636, quoting Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 20 L. Ed. 2d 947.

Additionally, Civ.R. 17 requires every civil action to be prosecuted in the name of the real party in interest. "The real party in interest is generally considered to be that person who can discharge the claim on which suit is brought * * * [or] is the party who, by substantive law, possesses  [*20]  the right to be enforced." In re Highland Holiday Subdivision (1971), 27 Ohio App.2d 237, 240, 273 N.E.2d 903.  If a party to an action is not the real party in interest, the party lacks standing to prosecute the action. State ex rel. Jones v. Suster (1998), 84 Ohio St.3d 70, 77, 1998 Ohio 275, 701 N.E.2d 1002.
Please bear in mind that this is intended ONLY as a survey introduction to several recent cases to give folks a starting place -- a footing -- for their own research.  Perhaps those researching Ohio cases on standing can give us some additional insights and elaboration as to Ohio cases they find interesting AND language within these cases which they find to be helpful or instructive.

Litigants in other judicial foreclosure states should be searching for relevant standing cases in their jurisdictions!
Quote 0 0
Ed Cage
William Roper wrote:
"I found this language in Newman v. Enriquez to be interesting:
"Before an Ohio court can consider the merits of a legal
claim, the person seeking relief must establish standing to
sue." Ohio Contractors Assn. v. Bicking (1994), 71 Ohio
St.3d 318, 320, 1994 Ohio 183, 643 N.E.2d 1088.  Whether
a party has standing depends upon whether he has a
"personal stake in the outcome of the controversy." 
                                    _      _      _ 
 
Bill as usual you have cut to the bottom line crux of the
area most likely to get mortgage fraud victims (at least
temporarily) off the hook.  Those who may not fully grasp
the essential importance of proper standing please take
note:

I don't care what state you are in, if you wish to seek a legal
remedy in any state you must be able to demonstrate proper
standing if asked to do so. The problem is (and this is the
importance of the Ohio cases) litigants seeking a foreclosure
have been routinely assumed by the Courts to have proper
standing when that may not always be so. The Ohio cases
amplify this long overlooked inherent weakness of mortgage
Courts to routinely make the “proper standing” assumption
without demanding strict proof that the plaintiff has legally met
that primary and necessary burden.

For example I can't bring a lawsuit on behalf of John Doe in
the MSFraud forum simply because I am convinced he is
being illegally exploited even if that claim is true.  A party
engaged in a lawsuit (litigant) must first demonstrate that
they have the legal right to initiate a lawsuit. In other words
the litigant must be sufficiently affected (proper standing)
and present clear and convincing evidence of same.

                       ***************************** 
                 This fundamental primary burden
                         has been overlooked
                       by too many for too long.
                       *****************************

WAR, you are in one of what I term the two most respected 
professions in the world, the military and law enforcement.*

HOWEVER it says here you should have been an attorney.

Ed Cage  /  ecagetx@tx.rr.com  /  972-596-4363
* In my view the second vocation is a person of the cloth..

 

Quote 0 0
Can anyone think of a counterclaim that one could file after raising the
issue of standing as an affirmative defense?

I raised the issue of standing in a case I was in and the Judge blew it off
refusing to rule either way. Of course, I was able to get the case dismissed
because I could prove I didn't default so the plaintiff US Bank Trustee
declined to go to trial and settled with me. To this day they have never
proved they own the Note, but the Judge wouldn't dismiss it on this basis
and kept sending us to mediation. In retrospect, I feel I shoud have filed
some sort of counterclaim for fraudulantly claiming to own the note when
they can't prove it. Any ideas?
Quote 0 0
Ed Cage

William as you know proving "fraud" requires clear and

convincing evidence of actual intent, a stiff burden.

 

I usually try to establish a *pattern*  An ongoing series 

of "mistakes" all favoring one side is difficult to sweep

under the rug if there has been multiple inquiries by the

victim of said fraud. 

Ed

Quote 0 0
Ed Cage

(I mistakenly wrote “William” on the prior post.

It should have started with “Mike H.”)

 

Mike H. as you know proving "fraud" requires clear and

convincing evidence of actual intent, a stiff burden.

 

I usually try to establish a *pattern*  An ongoing series 

of "mistakes" all favoring one side is difficult to sweep

under the rug if there has been multiple inquiries by the

victim of said fraud. 

 

Ed Cage  /  ecagetx@tx.rr.com 

Quote 0 0
Bishop
If a party plaintiff has no standing to engage in litigation, the right to collect on a note not owned by the plaintiff is disallowed without proof of an actual authority from the holder/owner of the note that they have authorized a foreclosure to be undertaken by the plaintiff.

Without proof of an actual authority to have commenced and maintained the foreclosure action no relief can be obtained by that plaintiff because they are not the real party in interest.

Motions to Dismiss the action should be brought based on the fact that the plaintiff is not the real party in interest. Thus, the complaint cannot state a claim upon which relief could be granted since there is no actual controversy between yourself and the plaintiff.

The Counter-claim for damages is that you have just engaged in defending in a matter in court with a party that does not have any basis (standing) in law to have attempted to collect from you any money not owed to them. The litigation is frivolous on its face and sanctionable by dismissal. However, you must request leave of court to file a counter-claim alleging negligence on the part of the plaintiff to obtain actual authority to have commenced and maintained the foreclosure action.

The fraud perpetrated on you by this plaintiff may also entitle you to collect on a counter-claim alleging a violation of your state's consumer fraud laws. But, by attempting to utilize your state's consumer fraud laws, you may be required by the court to show that this plaintiff has engaged in similar suits against other defendants without actual authority to have done so.

You may also counter-claim that the plaintiff failed to comply with your state's U.C.C. requirements for proof of an actual authority to have commenced and maintained the foreclosure action. Because a plaintiff is required to comply with your state's laws before having commenced the action, the mere fact that the plaintiff had filed the suit without complying with having obtained actual authority from the real party in interest, the holder/owner of the note, is sufficient to prevail in a counter-claim for damages for negligence in complying with state law relating to proof of actual authority to have commenced and maintained the foreclosure action.

Your problem, however, is that your judge is depriving you of the relief that you are entitled to by hampering your rights under the law to due process of law. You have a right to require proof of the plaintiff's actual authority without a judge depriving you of this right. You may have to bring a substitution of judge motion or an action in the U.S. District Court for your area requesting a declaratory judgement of your rights to the requisite proof of actual authority from the holder/owner of the note. Under 42 U.S.C 1983 a state court judge would be subject to injunctive relief granted by the U.S. District Court judge pursuant to applicable laws in your state.

As always, this is not legal advice and you should seek out an attorney that primarily practices in Federal Court as opposed to state court so that retaliation against your attorney by state court judges would be minimized. 

The only other alternative is to petition the U.S. District Court for removal of the action from state court to federal court so the matter could be litigated there. The premise for the removal is that you cannot obtain due process of law in state court which is guaranteed to you under the provisions of the 14th Amendment to the U.S. Constitution.  
Quote 0 0
Thanks for your ideas on a counterclaim and also the idea of removing it to
Federal Court.

With regard to those counterclaims you mentioned, how much in damages
do you think one could get if one were to prevail? ie how much should one
countersue for?
Quote 0 0
Mike H.:

Bishop has afforded you an EXCELLENT answer, but I would like to further support and elaborate that answer, as well as make at least one defense of the state court judges.

First the defense.  In many jurisdictions, the Court is not entitled to grant relief not expressly requested in within the pleadings.  So if your lawyer files a general denial and throws out a few alternative defenses, but you do NOT expressly COUNTERCLAIM for other related causes of action, you may WAIVE these causes of action.  Orally making some request NOT supported by pleadings may be an insufficient grounds for granting relief.

To this I would also add that lawyers are very often RELUCTANT to ask for sanctions against other lawyers.  Your lawyer possibly has some ongoing interaction and relationship with the lawyers on the other side.  The lawyer's relationship with YOU may be a one time, non-recurring event.  Many lawyers consider it BAD MANNERS to point to the other lawyer's eggregious mistakes or to ask for sanctions against another lawyer.

So I would START by making the EXPRESS counterclaims IN WRITING in your pleadings.  These counterclaims should also be supported by a well-prepared and thorough legal brief showing the LAW as to WHY the counterclaim should be granted.

If you want SANCTIONS against the lawyer, you need to show up with a written motion for sanctions.  While you might always file the motion for sanctions IN ADVANCE of the hearing, you may be able to drop this on the court DURING the hearings.

IT APPEARS TO ME THAT THE OHIO FEDERAL COURT IS CHOMPING AT THE BIT TO IMPOSE SANCTIONS OR TO ACT UPON A WELL PLEADED AND WELL BRIEF COUNTERCLAIM.  BUT AS FAR AS I CAN TELL, NO ONE HAS YET PLED COUNTERCLAIMS OR FILED A MOTION FOR SANCTIONS.
Quote 0 0
Mike H.:

That having been said, I would commend to you for reading 86 C.J.S. Torts §§ 86, 87 [pp. 748-752], as well as 72 C.J.S. Process §§ 106-114 [pp. 694-705].

 

If you are unfamiliar with legal citation, C.J.S. stands for Corpus Juris Secundum.  It is a very large legal encyclopedia.  The first number ("86" or "72") is generally a volume number, but this is sometimes misleading.  "86" actually is found in Volume 30A a later supplemental volume inserted into the sequence.  "Torts" or "Process" refers to the general topic.

 

Since this is copyrighted material, I am only going to give you the topic TITLES and a couple of brief excerts.  I believe that you will find this instructive as to the value and topicality to your inquiry.

 

86 C.J.S. Torts § 86.  Resort to, or Conduct of, Legal Remedies

86 C.J.S. Torts § 87.  -- Unauthorized Suit in Another's Name

 

[X.  ABUSE, OR MALICIOUS USE, OF PROCESS]

72 C.J.S. Process § 106.  Definitions, Distinctions and General Considerations

72 C.J.S. Process § 107.  Elements of Abuse of Process

72 C.J.S. Process § 108.  -- Use of Process

72 C.J.S. Process § 109.  -- Intent

72 C.J.S. Process § 110.  Elements of Malicious Use of Process

72 C.J.S. Process § 111.  Particular Forms of Abuse of Process Subject to Abuse

72 C.J.S. Process § 112.  Persons Liable

72 C.J.S. Process § 113.  Defenses

72 C.J.S. Process § 114.  Actions

 

86 C.J.S. Torts § 87.

"A tort may arise from the unauthorized prosecution of a suit in the name of another, irrespective of the merits of the suit if it had been properly brought; the gist of the tort is the improper liberty in using the name of another person in conducting a suit by which a defendant is injured.  Malice or want of probable cause is not an essential element of the cause of action.  ..."

 

72 C.J.S. Process § 106

"...  Malicious use of process is the employment of process for its legitimate purpose, but maliciously and without probably cause.  The gravamen of the wrong is malice and want of probable cause.  ...".

 

*

 

In studying this reference, it is IMPERATIVE to note that the principles enunciated are broad principles of American law.  The FOOTNOTES within C.J.S. show various cases supporting these principles.  Whether the principles have been embraced by the Courts in YOUR STATE is a subject for YOUR further legal research.  The FOOTNOTES give you some starting points as to cases to investigate.  But the real value of these Sections of C.J.S. is helping you to get the vocabulary right for a thorough KEYWORD SEARCH of Lexis-Nexis and/or WestLaw as to cases on point in your state.

 

So my suggestion would be for you to READ these sections or similar sections within American Jurisprudence, 2nd.  [I do NOT have references for you in Amer. Jur. 2nd, but the topics are very likely to be the SAME.]  Then look up the cases shown in the footnotes which relate to YOUR jurisdiction.  Next use the key terms or words from the most applicable sections to try to find cases which embrace the concepts discussed.

 

There are a number of online legal research guides.  The reference librarian at a good law library can also probably help guide you in your research.

 

Perhaps we should open a new discussion thread on this topic and maybe folks can POST some topical case law that they find.  The nice thing about case law is that it will NOT be copyrighted and we can post it here at the MS Fraud Forum.

 

Also, bear in mind that Bishops guidance is excellence.  There MAY also be other statutes or rules which have been violated and which form a basis for recovery.  Read your state's Rules of CIvil Procedure carefully.  There may be a nugget there for you!

 

Bear in mind that in order to recover your damages, you also need to be prepared to prove your damages.  This means that you are going to need to bring your attorney's legal invoices to court with you.  And you may also need to PROVE that the attorney's fees were reasonable and necessary.  You MIGHT need to do this by expert witness.  The Judge MIGHT allow an affidavit from another respected and experienced attorney as to the reasonableness and necessity of the legal expenses.  But you need to be cognizant of the proof that may be required prior to asking the judge to rule.

 

If you make your request by well-pleaded written counterclaim and/or motion for sanctions, as well as furnishing a well written legal brief in support of either or both, I think that your chance of prevailing is more than remote.  If you simply make an oral request without written pleadings or motion and without a supporting brief, I think that the judge is going to shoot you down 98% of the time UNLESS the judge is REALLY angry with the opposing counsel.  

 

Judges are supposed to be impartial.  There are some things that a judge will do sua sponte from the bench.  Awarding costs or attorneys' fees which have NOT been requestedewither in a counterclaim or by motion for sanctions is NOT usuallly amongst these.

 

The usual disclaimers apply.  This is NOT LEGAL ADVICE, but rather a discussion of some interesting aspects of the law.  To quote our brilliant and articulate friend "Moose", "your mileage may vary"!

Quote 0 0
Incidentally, I TRIED inserting the ASCII symbol for Section into the text above, but at first found that this rendered my text unsatisfactory to the posting service.  I then tried substituting "§" which is usually accepted by HTML as a Section symbol.  That didn't work either.

Where you see something like "86 C.J.S. Torts § 86", read that as "86 C.J.S. Torts SECTION 86".
 
Sorry!
Quote 0 0

Thanks for that information. I see now my weekends will be at the law library!

Quote 0 0
Sleuth

It is interesting to read this old post where Mr. Roper was teaching law to Mike H. before Mike decided to become a swindler.

 

When Mr. Roper discovered last year that Mike had gone into business swindling people and had been ripping people off by using what Mr. Roper had taught Mike back in 2008 using what Mr. Roper had posted as a pretext to defraud distressed borrowers, I can really see how Mr. Roper got angry!  Especially when Mike H. also started mixing in total b.s. to get people to pay him more money for hopeless cases.

 

Mike H. really is an ungrateful bastard to accept the gratuitous help of generous people like Mr. Roper, Bishop and Ed Cage and then to prey upon Forum users.  I can really see why so many Forum veterans hate Mike H. so much!

Quote 0 0
f

This thread is really quite a find, Sleuth.  As you point out, it shows William A. Roper being helpful.  It shows an ignorant and clueless Mike H., being instructed by William A. Roper as well as others like Bishop.

 

This really crytalizes what has been being said for the past year about Mike H. and his criminal enterprise.  It is really amazing that anyone would give Mike H. a dime, since he is such an idiot polluting other useful threads with his useless "death gable defense" and "quiet title defense" theories.

 

William A. Roper knew what he was talking about.  Mike H. just posts to find new victims for his scams.  He has no credibility whatsoever and truly belongs in jail.

Mr. Roper was willing to help Mike H. defend his house and Mike H. returns this kindness by both attacking William A. Roper and working to deceive and swindle other borrowers, all of whom end up losing their home due to Mike H.'s swindles and provision of useless information.  How disgusting!

Quote 0 0
Jeff

To call Mike H. a dirtbag is an insult to dirt!

Quote 0 0
Write a reply...