Federal Judges’ Orders

Judge Boyko’s decision, handed down October 31, 2007, dismissed 14 cases  and has the most colorful language and juicy footnotes - Judge Boyko Order to read.

Judge O’Malley’s decision, handed down November 14, 2007, dismissed 32 cases and  is the most matter-of-fact decision -  Judge O’Malley Order to read.

Judge Rose’s decision, handed down November 15, 2007, dismissed 20 cases and   chooses to focus on a perception that mortgage lenders are generally scofflaws by referencing a study by University of Iowa Associate Professor Katherine Porter (more about this below)  - Judge Rose Order to read.

Federal Judge Chris Boyko tossed out 14 foreclosure cases in a mass dismissal in Cleveland Ohio today because banks and other lenders failed to file a complete set of documents showing their claims were legitimate.

Federal Judge Kathleen M. O'Malley said the 32 cases she tossed could be re-filed if the proper paperwork was included with each lawsuit. Her ruling means the courts are going to give foreclosures increased scrutiny.

Deutsche Bank National Trust, Wells Fargo Bank NA, KMO Liquidation Properties Inc., LaSalle Bank Nat'l Assn, HSBC Mortgage Services, Specialty Mortgages LLC. are the well known lenders noted here along with a number of other lenders foreclosures that were tossed out of court.

The decision comes at a time when lenders are scrambling to pick up the pieces from bad loans, and borrowers are struggling to pay off debts that soared during the years of easy credit and predatory lending practices. Cleveland and the state of Ohio have some of the highest foreclosure rates in the United States, and the courts are swamped with thousands of legal actions against homeowners in default.

U.S. district Judge Kathleen M. O'Malley said she was enforcing a specific requirement of the federal court rules that demanded detailed information about the identities of lenders -- and the history of a loan -- involved in foreclosure actions. She said a review of cases pending before her showed that some of the plaintiffs seeking foreclosure have not been directly named in the loan documents that are at the heart of the cases filed in Cleveland. O'Malley said she wanted to see the complete history of a loan.

Predatory lending foreclosure

Home mortgage lenders often disobey the law and overreach in calculating the mortgage obligations of consumers….  Many of the overcharges and unreliable calculations… raise the spector of poor recordkeeping, failure to comply with consumer protection laws, and massive, consistent overcharging.” 

A foreclosure plaintiff, therefore, especially one who is not identified on the note and/or mortgage at issue, must attack to its complaint documentation demonstrating that it is the owner and holder of the note (SEE: holder in due course) and mortgage upon which suit was filed. In other words, a foreclosure plaintiff must provide documentation that it is the owner and holder of the note and mortgage as of the date the foreclosure action is filed.

O'Malley said the court recognizes that mortgages are often transferred, sold or end up with others than the originating lender. But she said the federal courts want the entire chain of a mortgage's history, from its start to where it was when it went into default.

"To the extent a note and mortgage are no longer held by the originating lender, a plaintiff must appropriately document the chain of ownership to demonstrate its legal status vis-a-vis the items at the time it files suit on those items. Appropriate 'documentation' includes, but is not limited to, trust and/or assignment documents before the action was commenced, or both as circumstances may require."

The Plaintiffs Affidavits

Affidavit in Judge Boyko Case

Affidavit in Judge O’Malley Case

Affidavit in Judge Rose Case

See Also:

The lender must prove existence of the note: http://mortgage-home-loan-bank-fraud.com/articles/stop_foreclosure.htm
For more information and case law authority: http://mortgage-home-loan-bank-fraud.com/articles/stop_foreclosure.htm
Is your Bank or Mortgage Lender Foreclosing?
You may be a Victim of Predatory Lending Foreclosure, see: http://mortgage-home-loan-bank-fraud.com/foreclosure_help.html
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About the author: Mr. Kenneth M. DeLashmutt the author of “Discover the Power of TILA” is a recognized Predatory Lending Defense Specialist and an authority on the subject of predatory lending practices, foreclosure defense and consumer protection. email: educationcenter2000@cox.net website: http://www.educationcenter2000.com To get your copy of “Discover the Power of TILA”, click on the following link: http://mortgage-home-loan-bank-fraud.com/manual.htm