KABOOM | Residential Mortgage Foreclosure Affidavit Policy of the Cuyahoga County Court of Common Pleas in Ohio

New Ohio Affidavit Rules Blows the Fraudsters Out of the Water

Below is a copy of the revised affidavit rules, an order from a specific case, and sample attorney affidavit forms…

Check out the language that should be applied in every court nationwide. This is all we ever asked for, the rule of law, that is already in place, be followed…

From the Rules…
(Emphasis added by 4F)

Revised Residential Mortgage Foreclosure Affidavit Policy of the Cuyahoga County Court of Common Pleas The Magistrates Department has received numerous motions of lenders requesting continuances to “ensure their paperwork is proper”. The affidavits in question have been filed in many guises such as affidavits of payment history, variable interest rate affidavits, real party in interest affidavits, affidavits in support of motions for summary judgment, etc.

The Foreclosure Committee has considered the seriousness of these recent disclosures and recommends the following in all residential mortgage foreclosure cases:

  • 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.
  • The Committee further recommends the entry of the following as a standing order in all residential mortgage foreclosure cases:

All affidavits filed in residential mortgage foreclosure cases must indicate that the affiant has actual personal knowledge of the file and loan history in question and has personally reviewed the documents, records, or other data relied upon to make the statements contained in the affidavit. Failure to provide appropriate affidavits may result in mandatory personal attendance of an affiant for a hearing, the imposition of sanctions and penalties for perjury or contempt, and dismissal of the case. Before judgment is entered on any claim for foreclosure and/or money judgment in a residential mortgage foreclosure case, counsel for plaintiff and any other party that asserts a claim for foreclosure or money judgment must file an Affidavit. This Affidavit must:

  1. Identify the counsel of record and his or her law firm.
  2. Provide that the counsel of record has reviewed the file.
  3. Provide that the counsel of record has communicated with a representative of the party seeking foreclosure and/or money judgment and that this representative has affirmed that he or she has personally reviewed the documents, records, or other data related to the case; has reviewed the pleadings and other court filings in the case; and has confirmed both the factual accuracy of the pleadings and court filings and the accuracy of the notarizations contained therein.
  4. Provide the full name of the representative described in Item 3 and the date or dates of the communication.
  5. Certify that, to the best of the counsel of record’s knowledge, the pleadings and other court filings in support of the claims for foreclosure are complete and accurate in all relevant respects.
  6. Acknowledge that counsel of record has a continuing obligation to amend and supplement the Affidavit in light of newly discovered facts following its filing.
  7. Be signed and dated by counsel of record. Failure to submit an appropriate Affidavit on or before the date of trial, the date that a motion for summary judgment is ripe for ruling, or the date of default hearing, whichever is applicable, will result in dismissal of the case and may result in further sanctions. Standardized Affidavit Forms are posted on the County website [link to forms]. All affidavits submitted pursuant to this order must be in the format of these Standardized Affidavit Forms.

In lieu of this affidavit:

  1. In cases where client affidavits have been filed, the affiant or affiants must appear at the hearing of the matter and testify regarding those affidavits. The representative must appear in person and telephonic appearance will not be permitted. If multiple client affidavits are filed in the case and are executed by more that one affiant, each affiant must appear at the hearing of the matter.
  2. In cases were no client affidavits have been filed, an officer of the party seeking foreclosure must appear at the hearing of the matter and testify in support of the allegations of the complaint and contents of other documents or court filings. The officer of the party seeking foreclosure must appear in person and telephonic appearance will not be permitted.
  3. In cases where no hearing is scheduled before the entry of judgment (such as some summary judgment cases), the party seeking foreclosure must, contemporaneously with the motion for summary judgment, move to schedule a hearing at which the affiant must appear.
  4. The affiant or officer of the party seeking foreclosure who appears in court in lieu of the filing of a foreclosure counsel affidavit must appear with the original promissory note, including all endorsements and allonges and a current payment history for the mortgage loan at issue. The affiant or officer of the party seeking foreclosure must be prepared to testify that he or she has personally reviewed the documents, records or other data related to the case, has reviewed the pleadings and other court filings in the case and has confirmed both the factual accuracy of the filings and the accuracy of the notarizations contained in affidavits filed in the case, if any. The affiant or officer of the party seeking foreclosure must be prepared to respond to the questioning of the magistrate or judge presiding over the hearing and the questioning of any other party attending the hearing.
  5. If the affiant or officer of the party seeking foreclosure has been previously deposed and has testified under oath regarding the above required information, the filing of the transcript of that deposition will satisfy the requirements of this policy.

Failure to file an attorney affidavit or do any of the alternatives to filing an attorney affidavit before the case is ripe for the entry of judgment will result in dismissal of the case.

  • All magistrates who do not receive contrary instructions from the judges to whom they are assigned will begin implementing the above procedures beginning immediately.

Pretty strong language there…

From the Order…

12/27/2010  –  THE FOLLOWING ORDER SUPERSEDES ANY PRIOR ORDER CONCERNING AFFIDAVITS IN THIS CASE: ALL AFFIDAVITS FILED IN RESIDENTIAL MORTGAGE FORECLOSURE CASES MUST INDICATE THAT THE AFFIANT HAS ACTUAL PERSONAL KNOWLEDGE OF THE FILE AND LOAN HISTORY IN QUESTION AND HAS PERSONALLY REVIEWED THE DOCUMENTS, RECORDS, OR OTHER DATA RELIED UPON TO MAKE THE STATEMENTS CONTAINED IN THE AFFIDAVIT. FAILURE TO PROVIDE APPROPRIATE AFFIDAVITS MAY RESULT IN MANDATORY PERSONAL ATTENDANCE OF AN AFFIANT FOR A HEARING, THE IMPOSITION OF SANCTIONS AND PENALTIES FOR PERJURY OR CONTEMPT, AND DISMISSAL OF THE CASE. BEFORE JUDGMENT IS ENTERED ON ANY CLAIM FOR FORECLOSURE AND/OR MONEY JUDGMENT IN A RESIDENTIAL MORTGAGE FORECLOSURE CASE, COUNSEL FOR PLAINTIFF AND ANY OTHER PARTY THAT ASSERTS A CLAIM FOR FORECLOSURE OR MONEY JUDGMENT MUST FILE AN AFFIDAVIT.

THIS AFFIDAVIT MUST:

1) IDENTIFY THE COUNSEL OF RECORD AND HIS OR HER LAW FIRM.

2) PROVIDE THAT THE COUNSEL OF RECORD HAS REVIEWED THE FILE.

3) PROVIDE THAT THE COUNSEL OF RECORD HAS COMMUNICATED WITH A REPRESENTATIVE OF THE PARTY SEEKING FORECLOSURE AND/OR MONEY JUDGMENT AND THAT THIS REPRESENTATIVE HAS AFFIRMED THAT HE OR SHE HAS PERSONALLY REVIEWED THE DOCUMENTS, RECORDS, OR OTHER DATA RELATED TO THE CASE; HAS REVIEWED THE PLEADINGS AND OTHER COURT FILINGS IN THE CASE; AND HAS CONFIRMED BOTH THE FACTUAL ACCURACY OF THE PLEADINGS AND COURT FILINGS AND THE ACCURACY OF THE NOTARIZATIONS CONTAINED THEREIN.

4) PROVIDE THE FULL NAME OF THE REPRESENTATIVE DESCRIBED IN ITEM 3 AND THE DATE OR DATES OF THE COMMUNICATION.

5) CERTIFY THAT, TO THE BEST OF THE COUNSEL OF RECORD’S KNOWLEDGE, THE PLEADINGS AND OTHER COURT FILINGS IN SUPPORT OF THE CLAIMS FOR FORECLOSURE ARE COMPLETE AND ACCURATE IN ALL RELEVANT RESPECTS.

6) ACKNOWLEDGE THAT COUNSEL OF RECORD HAS A CONTINUING OBLIGATION TO AMEND AND SUPPLEMENT THE AFFIDAVIT IN LIGHT OF NEWLY DISCOVERED FACTS FOLLOWING ITS FILING.

7) BE SIGNED AND DATED BY COUNSEL OF RECORD.

FAILURE TO SUBMIT AN APPROPRIATE AFFIDAVIT ON OR BEFORE THE DATE OF TRIAL, THE DATE THAT A MOTION FOR SUMMARY JUDGMENT IS RIPE FOR RULING, OR THE DATE OF DEFAULT HEARING, WHICHEVER IS APPLICABLE, WILL RESULT IN DISMISSAL OF THE CASE AND MAY RESULT IN FURTHER SANCTIONS. STANDARDIZED AFFIDAVIT FORMS ARE POSTED ON THE COUNTY WEBSITE: HTTP://CP.CUYAHOGACOUNTY.US/INTERNET/FORECLOSURE.ASPX ALL AFFIDAVITS SUBMITTED PURSUANT TO THIS ORDER MUST BE IN THE FORMAT OF THESE STANDARDIZED AFFIDAVIT FORMS.

IN LIEU OF THIS AFFIDAVIT:

1) IN CASES WHERE CLIENT AFFIDAVITS HAVE BEEN FILED, THE AFFIANT OR AFFIANTS MUST APPEAR AT THE HEARING OF THE MATTER AND TESTIFY REGARDING THOSE AFFIDAVITS. THE REPRESENTATIVE MUST APPEAR IN PERSON AND TELEPHONIC APPEARANCE WILL NOT BE PERMITTED. IF MULTIPLE CLIENT AFFIDAVITS ARE FILED IN THE CASE AND ARE EXECUTED BY MORE THAN ONE AFFIANT, EACH AFFIANT MUST APPEAR AT THE HEARING OF THE MATTER.

2) IN CASES WERE NO CLIENT AFFIDAVITS HAVE BEEN FILED, AN OFFICER OF THE PARTY SEEKING FORECLOSURE MUST APPEAR AT THE HEARING OF THE MATTER AND TESTIFY IN SUPPORT OF THE ALLEGATIONS OF THE COMPLAINT AND CONTENTS OF OTHER DOCUMENTS OR COURT FILINGS. THE OFFICER OF THE PARTY SEEKING FORECLOSURE MUST APPEAR IN PERSON AND TELEPHONIC APPEARANCE WILL NOT BE PERMITTED.

3) IN CASES WHERE NO HEARING IS SCHEDULED BEFORE THE ENTRY OF JUDGMENT (SUCH AS SOME SUMMARY JUDGMENT CASES), THE PARTY SEEKING FORECLOSURE MUST, CONTEMPORANEOUSLY WITH THE MOTION FOR SUMMARY JUDGMENT, MOVE TO SCHEDULE A HEARING AT WHICH THE AFFIANT MUST APPEAR.

4) THE AFFIANT OR OFFICER OF THE PARTY SEEKING FORECLOSURE WHO APPEARS IN COURT IN LIEU OF THE FILING OF A FORECLOSURE COUNSEL AFFIDAVIT MUST APPEAR WITH THE ORIGINAL PROMISSORY NOTE, INCLUDING ALL ENDORSEMENTS AND ALLONGES AND A CURRENT PAYMENT HISTORY FOR THE MORTGAGE LOAN AT ISSUE. THE AFFIANT OR OFFICER OF THE PARTY SEEKING FORECLOSURE MUST BE PREPARED TO TESTIFY THAT HE OR SHE HAS PERSONALLY REVIEWED THE DOCUMENTS, RECORDS OR OTHER DATA RELATED TO THE CASE, HAS REVIEWED THE PLEADINGS AND OTHER COURT FILINGS IN THE CASE AND HAS CONFIRMED BOTH THE FACTUAL ACCURACY OF THE FILINGS AND THE ACCURACY OF THE NOTARIZATIONS CONTAINED IN AFFIDAVITS FILED IN THE CASE, IF ANY. THE AFFIANT OR OFFICER OF THE PARTY SEEKING FORECLOSURE MUST BE PREPARED TO RESPOND TO THE QUESTIONING OF THE MAGISTRATE OR JUDGE PRESIDING OVER THE HEARING AND THE QUESTIONING OF ANY OTHER PARTY ATTENDING THE HEARING.

5) IF THE AFFIANT OR OFFICER OF THE PARTY SEEKING FORECLOSURE HAS BEEN PREVIOUSLY DEPOSED AND HAS TESTIFIED UNDER OATH REGARDING THE ABOVE REQUIRED INFORMATION, THE FILING OF THE TRANSCRIPT OF THAT DEPOSITION WILL SATISFY THE REQUIREMENTS OF THIS POLICY.

FAILURE TO FILE AN ATTORNEY AFFIDAVIT OR DO ANY OF THE ALTERNATIVES TO FILING AN ATTORNEY AFFIDAVIT BEFORE THE CASE IS RIPE FOR THE ENTRY OF JUDGMENT WILL RESULT IN DISMISSAL OF THE CASE. CLPAL 12/27/2010 NOTICE ISSUED

Copy of rules and attorney affidavit forms below…

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4closureFraud.org

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Revised Residential Mortgage Foreclosure Affidavit Policy of the Cuyahoga County Court of Common Pleas

Cuyahoga County Ohio Attorney Affidavit Forms

Comments
8 Responses to “KABOOM | Residential Mortgage Foreclosure Affidavit Policy of the Cuyahoga County Court of Common Pleas in Ohio”
  1. Stupendous Man - Defender of Liberty - Foe of Tyranny says:

    Rather than enforce the rules already in place they’ve merely issued a new “policy.” This has the practical effect of making the rules “toothless.” I wonder if this new policy will also be “toothless?”

    Unenforced rules are worse than useless as they give an image with no substance.

  2. Flex says:

    Congrats! Ohio and New York!
    Mission Accomplished? not by a long shot. We have a lot of work to do this year. Now we all expect that the rest of the States follow suit. As you well know, there are two types of States, Judicial and non-judicial. Although the law should be applied in all states, there are many states’ judges that feel different about this.
    Also remember, there are so many judges out there that were born with a silver spoon in their mouth and they follow the money. And then, there are those who have stocks in the banks that they are making a motion on.
    And would you believe they put their interest first, before the public. How about those judges that are in their best relationship with the banksters? May be we should form a task force and investigate the record of every judge in America. Those who are found who have a conflict of interest with the banks, should not be allowed to make this type of ruling. Perhaps they could be assigned to other types of cases.
    I just read an article where a few judges recused themselves from the case. Imagine why they did it. Until now it seems nobody knows. I really enjoyed reading this court order. I hope as we all, the rest of the states’ courts follow this example and apply the law as it was written, and as always existed in this case.
    I was already wondering if there is a law for these cases, and if they did, why were not being applied.
    Hurray! and Bravo! to all who fought for all us Americans. Now is time to pay back. Pay back by sharing the knowledge and telling everyone you know what Ohio and New York have done to make justice in this country a reality again. No need to be afraid or be submerged by the imperialism of the banking industry anymore.
    This court order should give us the arms that we need to fight back. Now let’s build the momentum and the masses to file suit against every bank out there who is taking your home illegally.
    There is one thing I would suggest to the court to add to this order. Any Attorney found guilty of perjury on any affidavit as the one who filed the claim and verify the affidavit as having knowledge of every account records, should be held in contempt out court, sanctions to be made, and lost of his/her license, plus time in jail.
    This will set an example to those Attorneys representing the banksters that think they are above the law, as they know the banksters also think they are above the law, since they have the money and the power to control the government, as well as control the judges in our court system.
    Now, let’s pray to God and thank God and Jesus for answering our prayers. God Bless Mike and Lisa from this site. Thanks for keeping us informed and educated. Keep up the great work!
    God Bless You! and God Bless America!

  3. MSJ says:

    RIGHT ON!!!!!! FIRST NEW YORK NOW OHIO…. THANK YOU GOD & THANK YOU JESUS
    NOW EVERY OTHER STATE NEEDS TO FOLLOW,,,

  4. Cindy says:

    Congrats, Floridians! You patriots have accomplished much in this fight. I long for the day all states follow this same path. I have heard very little from borrowers in foreclosure in my state concerning robo-signers, so maybe it’s not happening in some states.

    • Cindy says:

      Oops, I didn’t pay enough attention to this being in OHIO instead of Florida. Still, Floridians have been on the forefront, inspiring many of us along the way. Congrats to Ohio, too!

      • Noelle says:

        Wake up and smell the roses.

        The banksters and RE lobby are too powerful, and the state of FL is beholden to their lobbyists. It will never happen there.

  5. indio007 says:

    This is great! I just ca’t believe they have to be re-instructed to follow the long standing law. That is this, there needs to be a competent fact witness with first hand information of the truth in order to get a judgement.

    Our court system is so screwed because people are being jailed searched and arrested on the same lack of legal sufficiency. This permeates the court’s at every level From probate to criminal.

    • Becky Kawaja says:

      PLEASE.can anyone help us. Bank of America bought our home right out from under us,while we were working on a loan mofication with EMC. We have been to court twice,including that we did not receive the 3 Day Notice. 3 differnt attorneys told me they would have to start over,and would give us more time. Time is what we need. We dont have the money to move now,if we could just have till Febuary we would be OK . My husband spent 23 years serving our country; in the Navy. This was his first home,he is 73 years old.and we are really going to be on the street. All I need is more time and money before they lock us out. of our beloved home. PLEASE.PLEASE can any one help. Ed & Becky oneclimber@comcast.net I have never been so scared in life. We are law abiding citizens,don;t drink or party,are southern baptist and just enjoy being home. ‘t;here is no way to explain the feeling in my gut,the fear,Please help is possible..Thank You Becky Kawaja

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