Before in this column, I compared the court system to a sleeping giant when it comes to foreclosure cases, in that it is just slowly waking up to all the fraud and abuse by the banks in their push to take peoples’ homes away because it is profitable to do so. Finally trial courts are being admonished by higher courts to slow down the rush to order foreclosure, examine the bank’s paperwork, and judge the bank’s proof by the same standards which it would if you or I offered it. Mark and Susie’s story is dramatic evidence of this phenomenon.
Mark and Susie came to us several years ago, having just received a foreclosure complaint. Immediately, we questioned the validity of their paperwork. At the same time we reached out to the bank in an effort to have it work with us in good faith to allow Mark and Susie to save their home. Unfortunately, the bank refused to do so, insisting on pressing ahead with the foreclosure, even though Mark and Susie had the ability and willingness to pay on their loan. However, as we’ve seen all too often, (things are changing now, by the way), the bank doesn’t care about the homeowners’ good faith desire to save their home. This is because the bank is not the owner of the loan and therefore has nothing to lose, no matter how upside down the homeowner is. On the other hand, it has everything to gain since it has financial products, such as mortgage insurance and credit derivatives, which will pay off upon foreclosure.
Enter the Ohio Supreme Court into the fray. Several months ago, it rendered a seminal decision which in essence held that the foreclosing bank must prove that it had the right to foreclose at the time it filed the foreclosure action. Based on that decision, the Supreme Court accepted Mark and Susie’s appeal from the trial court’s foreclosure judgment against them, a ruling which was affirmed by the Court of Appeals. In doing so, the Supreme Court reversed the ruling by the courts below, and sent the case back for further consideration.
What that means is that the courts are instructed to take a second look at the bank’s paperwork in Mark and Susie’s case. When they do so, we are confident that they will see the discrepancies they overlooked the first time around. That in turn means that there is little doubt we will see a whole new spirit of cooperation from the bank toward Mark and Susie. All of this comes from the “sleeping giant” awakening. Thank you Ohio Supreme Court!
Note from the author: If you have questions or comments regarding this or any Foreclosure Story article, please visit www.mcgookeylaw.com.
Next week: Success breeds success!
Copyright 2013 Daniel L. McGookey