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CLIENT ADVISORY - December 12, 2007
Turbulence In Ohio Over Assignments of Mortgages
by Larry R. Rothenberg, Esq.
Following last month's Federal Court dismissals of a number of foreclosures where the mortgages had not been assigned to the plaintiff prior to the commencement of the cases, there have been rapid developments in various state courts along these lines. A judge in Cincinnati dismissed a foreclosure case "with prejudice", meaning that it cannot be re-filed. A judge in Canton dismissed a case and imposed a $4,500 sanction against the plaintiff. The Ohio Attorney General filed motions to dismiss for the same reason, in a number of state court cases in which the State is a party based on it being a lienholder.
You can review copies of the above-referenced developments by clicking on the following links:
- Magistrate's Decision, Hamilton County dated July 23, 2007
- Entry Sustaining Objections to Magistrate's Decision, Hamilton County dated November 27, 2007
- State of Ohio Motion to Dismiss, Franklin County dated November 30, 2007
- Hamilton County Motion to Dismiss dated December 1, 2007
- Recent Award of Sanctions, Stark County dated December 5, 2007
Although we disagree with these rulings, we expect that debtors' attorneys will seize the opportunity to raise this issue, and that some or perhaps many more state court judges might issue adverse decisions. Therefore, we strongly recommend that foreclosures not be commenced until the necessary assignment of the mortgage to the named plaintiff has been obtained.
Please contact Frank Veneziano at (513) 723-2204 or Larry Rothenberg at (216) 685-1135 if you would like to discuss this issue further.
Frank Veneziano is the Managing Partner of the Real Estate Default Group at Weltman, Weinberg & Reis Co., L.P.A. and is located in the Cincinnati office. Frank can be reached at (513) 723-2204 or via e-mail at fveneziano@weltman.com.
Larry Rothenberg is a Partner managing the Foreclosure/Evictions department of the Cleveland office of Weltman, Weinberg & Reis Co., L.P.A. He is the author of the Ohio Jurisdictional Section contained in the treatise, "Dunaway, The Law of Distressed Real Estate". The firm handles foreclosures and related litigation throughout Ohio, Kentucky, Indiana, Illinois, Pennsylvania and Michigan. Larry can be reached at (216) 685-1135 or via e-mail at lrothenberg@weltman.com.
Client Advisory is published by Weltman, Weinberg & Reis Co., L.P.A., an organization providing comprehensive creditor representation. The information contained in this advisory is a summary of legal information and is not intended to constitute legal advice on specific matters or create an attorney-client relationship. Contact any of our offices or visit www.realestatedefaultgroup.com for more information, company facts and attorney profiles. (c)2007