The Cuyahoga County Court of Common Pleas has struck a blow for the rule of law in foreclosures, requiring that Cleveland area mortgage lenders must have original notes to prove foreclosure. Dday:
Mortgage lenders have sought to merely replace “robo-signed” documents with new substitute documents, in order to keep the foreclosure train rolling. This ruling in Cuyahoga County would disallow that. Here’s what it says:
In prejudgment cases where a lender has requested a delay in the proceedings to examine evidence it has submitted or otherwise calls into question the validity of the evidence its has submitted, the Committee recommends the entry of an order requiring plaintiff within thirty days to show cause why the case should not be dismissed without prejudice.
In post judgment cases where the lender has requested a delay in the proceedings to examine evidence it has submitted in support of its judgment or otherwise calls into question the validity of the evidence its has submitted, the Committee recommends the entry of an order requiring plaintiff within thirty days to show cause why the case should not be dismissed and the judgment vacated.
In any case where the lender seeks to remove the case from the active docket to examine evidence it has submitted, the Committee recommends that the motion be denied as improper under the rules of Civil Procedure and Superintendence. Following denial of the motion, an order as described above should be entered.
In other words, a party seeking foreclosure would basically have to start the process all over again in Cuyahoga County, as opposed to the substitute process. This stretches out the time before a foreclosure becomes legal and imposes significant costs on the banks. It’s a win for outgoing Attorney General Richard Cordray, who will soon join the Consumer Financial Protection Bureau. He basically wants this to become the standard for all courts in Ohio.
Additionally, the guidance in Cuyahoga County would force the counsel for the lender to "attest personally" to having reviewed the foreclosure file, as well as the affidavit signer. "Failure to provide proper documentation and affidavits to this effect would result in the signer or an officer of the party seeking foreclosure having to come to court to testify about his or her personal knowledge. Sanctions for perjury or contempt of court could spring from that." Without the signed affidavits attesting to the validity of the documents, the lenders have to provide the original note.
This is just one jurisdiction, but will hopefully provide precedent for other courts. This should be the standard for every court in the nation.