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  1. #1

    Default Removing an Unenforceable Lien from Real Estate

    My question involves real estate located in the State of Ohio.
    Here is the background of the current situation. The mortgagee passed away. Nearly two years later, the mortgage company filed a foreclosure suit against mortgagee and heirs. After a year in court, the mortgage appeared invalid. The magistrate ordered the company to show why case should not be dismissed for failure to provide a proper assignment of note within thirty days. The mortgage company failed to act and the case was dismissed without prejudice.
    Five months later, the mortgage company filed a second foreclosure suit against the property owners, without listing the mortgagee in the suit. After 14 months in court, 19 months since first case was dismissed, the second case was dismissed.
    Being that the note in now unenforceable and cannot be sued against due to timing, a quiet claim action is being formed to remove the lien from the property.
    Please comment with any available knowledge. Your assistance is greatly appreciated.

  2. #2
    Join Date
    Mar 2008

    Default Re: Looking for Precedent Cases. Assistance Requested

    This is definitely not a "do at home" project, but using a competent real estate attorney, one preparing and filing the correct forms, looking something like:

    And then filing the decision of the court afterwards.

    The attorney would obviously have to frame the complaint and relief based on the facts of your case.

    One way is to run down to your local County clerks office and find one that is filed, see if someone in the office can tell you a quick way of digging one up, find the attorney who did it ( name should be on the complaint form ), and you're set. If the information is on line, you might be able to get it that way.

    Beyond that, it all depends on how the information is organized down in your county.

  3. #3

    Default Re: Looking for Precedent Cases. Assistance Requested

    My attorney is filing the suit. However, to save money he suggested that I look for some Precedent cases instead of him charging to look. If I am unsuccessful, he and his staff will do the research. Thank you for the advice so far.

  4. #4
    Join Date
    Mar 2008

    Default Re: Looking for Precedent Cases. Assistance Requested

    I understand.

    I used some attornies like this one, and what they are actually saying to you is "I have NO idea how to write one up, and I if I have to spend my time or my staffs' time to figure it out, you'll pay a pretty penny". What does he expect you to do?? Find one in the public records, and he will copy it word for word, just changing the names and dates.

    I had one lawyer do this on me, and my situation happened to be the exact opposite of what the document he had does, he copied it word for word, but what he should've done was inserted several words "NOT" in the document, he forgot to do it, ( blamed his secretary ) and I signed it. It was after my wife insisted on reading the legal document from beginning to end that the error was discovered, it intended the opposite of what I needed.

    What got my attennae up in your case was you got a lawyer doing the same thing.

    Based on what I see here, it is a simple issue of drawing up a "Complaint to quiet Title ...", stating the facts that: "two lawsuits, date xxx, yyy fouind the mortgage invalid", prefaced by a few "Wherases" and asking the court to: "grant you the relief by the release of the lien" prefaced by "For a judgement ...".

    It is so simple, so what is there to research??

    Quiet title actions to accomplish this had become very common in recent years due to consolidation of banks. This resulted in mortgages paid off years ago, with liens not released. People are unable to find the bank in question, let alone find the bank who held the mortgage orgiinally. Lawyers who does this type of work would primarily be in the estate field, because paid off houses in estates need clear titles on them to be sold.

    If you're looking for a document somewhere where your lawyer can COPY word for word, there, I can't help you here as I can't provide legal advice. You will find these documents down in your county clerks office if you'll just go down there and ask them if they recall anyone filing them recently, or show you how their filing system works.

    PS: I have in the past done "research" for a lawyer on drawing up a "Partnership" agreement I needed, he like my research so much, he reviewed it. copied it word for word, and charged me for reviewing it, and having it typed up. His comment to me was: "you should've been a lawyer". This is not the lawyer I cited above.

  5. #5

    Default Re: Looking for Precedent Cases. Assistance Requested

    I think you may be interpreting the situation a little differently than I had intended. My attorney has the quiet title action completed and almost ready to file. He is a Real Estate Lawyer: It's all he has done for almost 25 years. We are looking for precedent cases to solidify the case.
    It was actually my idea to do the research to save money. I have found some information on various supreme court sites similar, but not the same. I figured by putting it out on various legal forums, it will increase the likelihood that someone will have had an identical or nearly identical case and share their case information to reference. Our belief (an initial search results) is that it is unlikely to be very common for a bank to erroneously fail to file necessary documents which causes the suit to be dismissed then erroneously file a foreclosure suit without the mortgagee as a defendant and have such a lag in response that they cannot file another suit against the mortgagee.
    I am sorry to hear that you have been raked over by attorneys in the past. I know that I have heard of lots of bad ones. I have been very lucky to have two attorneys who are very good and if I needed something outside of their expertise, they have pointed me to contacts who settled/dismissed the cases quickly.
    Please let me know if you find any similar/identical/nearly identical cases of this description. Thank You!

  6. #6
    Join Date
    Mar 2008

    Default Re: Looking for Precedent Cases. Assistance Requested

    OK, now I see where you are coming from.

    This phenomenon of mortgages sold, and bundled, and assigned, is not new, but courts making the assignees prove that they actually own them is new.

    My take on this is you may perhaps be a bit too cautious here. If it was me, I would strike while the iron is hot, move ahead, and get this resolved once and for all.

    You have a right to have clear title, and the mortgagors certainly can't prove anything after two tries, so the question is "how long do you have to wait"??

    In fact, I have a similar situation with a "corporate dissolution" where my attorney wanted to charge a bit money to do research to be sure. There is a cheaper alternative, which is to have a defunct company for a short while.

    While my case is not the same as yours, perhaps the "cheaper way" for you is just to file the complaint, and let the opposition find the "precedent". This will certainly speed things up for you, and then you don't have to spend the money on the research.

  7. #7

    Default Re: Looking for Precedent Cases. Assistance Requested

    Thank you for your opinions. I will certainly take your thoughts under advisement. Good luck with your corporate dissolution!

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