Common Defenses In Ohio Foreclosure Lawsuits
If you, as a homeowner, were to fall behind on your mortgage payments, you likely think that foreclosure is inevitable. In Ohio, however, lenders have to meet strict requirements before they can take away your home. A lot of foreclosure cases fail because the bank cannot prove it has the right to enforce the loan. In other cases, they may not have followed the correct legal procedures. Understanding the defenses you have as a homeowner can give you valuable leverage in protecting your property and negotiating a fair outcome.
Standing: Understanding the right to sue
One of the more common defenses in a foreclosure case is lack of standing. The bank has to show that it owns the loan and that it has the legal right to enforce it when it files the foreclosure complaint. In many cases, mortgages are transferred between multiple parties, servicers, or investors. If the paperwork isn’t complete or the assignment of the mortgage is recorded after the lawsuit begins, the bank might not have standing. If that’s the case, the foreclosure can be dismissed until the bank gets its affairs in order.
Ohio courts have consistently emphasized this rule. As an example, in Federal Home Loan Mortgage Corp v. Schwartzwald, the Ohio Supreme Court held that the lender has to have standing when the case is filed, not afterward. For homeowners, this means you can challenge the foreclosure if the bank doesn’t own the note or mortgage at that time. Most homeowners don’t know this and capitulate even when the bank doesn’t have a case.
Chain of title and missing documentation
Banks have to be able to produce the original promissory note and a clear change of ownership from the original lender to the current holder. In the case of missing or forged endorsements, robo-signed affidavits, or incomplete assignments, it can undermine the bank’s case. In some instances, Ohio courts have dismissed foreclosures when the bank couldn’t prove how it obtained the loan or it relied on defective paperwork.
Your attorney would demand such documents through discovery. If the lender can’t provide them, the defense can argue that the foreclosure is invalid since the plaintiff can’t prove it is the rightful creditor.
Payment and servicing errors
In other cases, a frequent defense employed by homeowners involves mortgage servicing mistakes. These include misapplied payments, inflated fees, and incorrect interest calculations, among other things. In some cases, lenders will initiate foreclosure even when the homeowner is not in default. Under federal law (RESPA), borrowers can request detailed information from servicers to dispute legitimate errors. A bank’s failure to properly respond or correct the mistake can strengthen the homeowner’s position in court.
Procedural or notice violations
Ohio law and mortgage contracts usually require the lender to provide proper notice of default. It also requires that lenders provide an opportunity to cure the delinquency before they file for foreclosure. If the bank fails to send the notice (or sends it to the wrong address), the foreclosure can be thrown out of court. Similarly, errors in how the summons or complaint are served can create procedural grounds for dismissal.
Talk to a Columbus, OH, Foreclosure Defense Lawyer Today
Kohl & Cook Law Firm, LLC, represents the interests of homeowners who want to defend their homes from foreclosure. Call our Columbus foreclosure defense lawyers today to schedule an appointment, and we can begin discussing your next steps right away.
