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Lawyers Challenge OH Foreclosure Requirements

Six lawyers are challenging Ohio requirements that they “personally certify the authenticity and accuracy” of all foreclosure documents. A complaint filed in the state’s supreme court against three judges requests a writ of prohibition.

In response to a national outcry over fraudulent foreclosure filings, three Franklin County, Ohio, judges are requiring lawyers to verify that all of the documents in residential-foreclosure actions are valid.

Six of the lawyers affected by the order are fighting back. They have asked the Ohio Supreme Court to prohibit the judges from requiring them to sign “certifications” on behalf of their clients. The dispute could slow the processing of some foreclosure cases.

The complaint, seeking what is known as a writ of prohibition, was filed by the lawyers in December and names Common Pleas Judges John F. Bender, Kimberly Cocroft and Guy Reece.

The Franklin County prosecutor’s office, which is defending the judges, has until today to file a response.

Among the 17 judges in the Common Pleas general division, at least two others — Laurel Beatty and David W. Fais — had intended to mail the orders to lawyers but stopped after the complaint was filed with the Supreme Court.

The New York State court system began requiring lawyers to certify the accuracy of foreclosure documents in October. That action, believed to be the first by a court system in the nation, has not been challenged.

Cocroft said the action was prompted by growing concerns about the foreclosure process.

“Before we sign off on foreclosures, we want to make sure we are diligent in confirming the accuracy of those filings,” she said. “It’s a life-changing event.”

Reece said there are alternatives for lawyers who don’t want to sign the certification.

“They have the option of showing up in court, having a hearing and producing the evidence,” he said.

Bender declined to comment.

The complaint states that requiring lawyers to comply with the judges’ order forces them “to divulge the details of specific communications … protected by the attorney-client privilege.” John C. Greiner, a Cleveland attorney representing the lawyers, said he was not authorized to discuss the complaint.

State attorneys general across the nation, including then-Ohio Attorney General Richard Cordray, announced in October that they were investigating fraudulent foreclosure filings.

The controversy was driven in part by the revelation that some law firms and major lenders were using so-called “robo-signers” to complete affidavits on foreclosures without reading the documents or verifying ownership of the mortgages’ notes.

The attorneys general found cases in which the homeowner actually was not in default on the mortgage or the amount owed to the lender was inflated. In others, there was inadequate proof that the lender filing the action actually held the debt.

In October, The Dispatch examined the files of more than 130 people whose houses were slated for auction and identified at least 55 whose foreclosure cases contained mistakes, omissions of crucial evidence or questionable affidavits.

Bender, Cocroft and Reece each had more than 200 foreclosure cases on their dockets when they began sending the orders to lawyers in late November. None is tracking the number of cases affected by the legal dispute.

The judges told the lawyers that they must “personally certify the authenticity and accuracy of all documents” in support of a residential-foreclosure filing. If a lawyer doesn’t comply, the judge will not grant a motion for default or summary judgment, but will instead schedule the case for trial.

That could delay a case for as long as a year.

Cocroft and Reece said most lawyers have complied with the requirement. Staff members for the judges said some lawyers have dismissed foreclosure actions, presumably to re-file them after assembling the necessary documents or after the Supreme Court rules.

The six lawyers who filed the complaint include Brian L. Williams of Columbus as well as lawyers from Cleveland, Cincinnati, Dayton and Beechwood.

“The court is attempting to carte blanche circumvent the attorney-client privilege of all plaintiff litigants in mortgage foreclosure cases, no matter the facts and without first discovering … any evidence of a crime” or misconduct, Cleveland lawyer Richard S. Koblentz wrote in a supporting opinion filed with the complaint.

Administrative Judge Charles C. Schneider said he is scrutinizing foreclosures filed by lenders who were investigated by Cordray, but he isn’t requiring certifications from lawyers. He considers the order redundant.

Rule 11 of the Ohio Rules of Civil Procedure, he said, requires that any lawyer filing a case has read the documents and “has reason to believe there are good grounds to support it.”

If a lawyer files any case without reading the supporting documents, “he’s already in violation of Rule 11,” Schneider said.

“That’s just my opinion,” the judge said. “Each individual judge will have to decide how to handle this.”

Dispatch news researcher Julie Albert contributed to this story.

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