CLEVELAND – In late February, Ohio’s 8th District Court of Appeals heard oral arguments in what must be one of the most outrageous foreclosure cases in the nation’s history. It is the case of Richard Davet. The most disturbing aspects of the case is it should have been dismissed with the bank’s 1996 filing, and subsequent Ohio case law agrees.
In 1996, NationsBanc (now Bank of America) initiated a foreclosure action against the Davet family and invoked the jurisdiction of the court by claiming to be the owner and holder of the loan. Mr. Davet, who the Wall Street Journal would later describe as prescient, immediately challenged Bank of America’s standing to sue and counterclaimed for damages. Davet established Fannie Mae was the owner and holder. This was more than a decade before the public would learn about the systemically false ownership claims made by banks. Without the proper party, the law directs courts to summarily dismiss the case. And that is where the Davet case should have ended. The truth should have set Davet free in 1996. It did not.
Instead of dismissing the complaint, the 1996 court somehow granted judgment to Bank of America after it was already established they were not the real party, and therefore the court was without jurisdiction to render judgment.
Since then, Davet has been stuck inside a judicial treadmill, and for the last 16 years, the Davet’s lives have been manipulated and controlled by a judgment the law considers mere waste paper. This should be a crime in itself.
Fool a judge once –shame on you; manipulate judges thousands of times and you can turn a city into the “Epicenter for Foreclosures” and 60 Minutes will come to town to film the damage you caused.
Don’t Give Up On Ohio Courts Just Yet
Ohio has shown promise during Davet’s ordeal with widely-cited foreclosure opinions of its own, such as Wells Fargo v. Jordan, Wells Fargo v. Byrd and Deutsche Bank v. Triplett that fit squarely within the Davet’s case and support vacating judgment:
• “if plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law.”,
• “in a foreclosure action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage.”
The Jordan opinion also states:
“Several judges have held that a complaint must be dismissed if the Plaintiff cannot prove that it owned the note and mortgage on the date the complaint was filed.”
Also encouraging, Davet’s current appeal has been assigned to the author of Wells v. Jordan. There is confidence this court will not and cannot make the same mistakes as other Davet courts. (cont. pg. 3) –> Davet claims he still has legal title and his latest appeal is an action to get his home back. Ohio’s former Attorney General Marc Dann and attorney Grace Doberdruk are representing him.
The mishandling of wrongful foreclosures became so great it attracted 60 Minutes to come to Cleveland to report on the devastation these preventable foreclosures had caused.
The new foreclosure model also leaned heavily on its favorite statistic: 9 out of 10 people targeted would not know to challenge the banks ownership, because the public and the courts largely believed if a bank presented a statement to a court of law, it must be truthful. Intimidated, 9 out of 10 homeowners would leave the keys on the counter and walk away.
The bank would also walk away… with the free house and all of the homeowner’s equity. To obtain this windfall, the bank would write a threat letter to the homeowner; or if necessary, fill out a computer-generated court form and take it to a court for a stamp of approval. It worked almost like a conveyer belt, with a robotic-like judge sitting at the stamping station near the end of the line.
Florida’s Rocket Docket became famous for it. Did it help? No, it propelled Florida into one of the worst foreclosure states in the country. Illegal foreclosures flourished in areas where the judiciary and law enforcement were complicit. Compare that to Nevada. After it imposed criminal penalties for what the banks and their lawyers were doing – illegal foreclosures virtually stopped.
Did Davet’s Evidence Threaten The Foreclosure Machine?
If not, then why did Bank of America bring in the “influential” firm Jones Day to litigate for years against a pro se litigant on one house with an $83K mortgage.
Think about it. If banks could win possession of a home they do not own, with a borrower not in material default, and while the homeowners were living in it… why, they could take anybody’s home.
And that is why today we still hear horror stories of banks foreclosing on homes that didn’t even have a mortgage; foreclosing on the wrong home, and even one where there wasn’t a home to foreclose. As Ohio’s Judge Christopher Boyko so eloquently stated in his now famous Opinion in 2007:
“The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate.”
Ohio Courts may decide it’s time to turn it around and start undoing the damage. And they certainly have a good place to start.