December 28, 2010 _________________ _________________ _________________ Re: Fraudulent Foreclosure Affidavits Dear Judge _________________, On September 28, October 18, and October

29, 2010, I wrote to you and the other presiding and administrative judges of the Ohio Courts of Common Pleas, noting widespread questions about the accuracy of affidavits filed in foreclosure cases by GMAC Mortgage, Bank of America, JPMorgan Chase, PNC, Wells Fargo and others. I am writing to update you on developments in this area. In my last letter, I asked you to send my office affidavits signed by robo-signers as well as any motions you received from foreclosure counsel to submit a new affidavit or ratify a foreclosure judgment. A number of you have done so, and I thank you for helping us keep track of the situation. Our office is deciding whether and how to take action in these individual cases. Several courts have taken their own actions to address this situation. The Cuyahoga County Court of Common Pleas has issued a policy on foreclosure affidavits, recommending that its judges issue an order requiring a lender who submitted a robo-signed affidavit, pre or postjudgment, to show cause why the case should not be dismissed without prejudice. In the future, counsel for a lender in a foreclosure proceeding must sign an affidavit attesting that counsel has reviewed the file and confirmed with his or her client that the client reviewed the file. The policy, which is currently under review, and template affidavit are available at Judge Charles Pater of the Butler County Court of Common Pleas issued an order denying GMAC’s motion to ratify a judgment because “neither the Ohio Civil Rules nor the local rules of this court provide a procedure for or authorize a court to ‘ratify’ a final appealable order” and stating that “the proper course of action would be for GMAC to first file a motion to set aside its judgment and then, once the court grants that motion, to refile its motion for summary judgment with a correctly executed affidavit in support.” Judge Pater’s order is attached to this letter. As I stated in my October 29 letter, “it is improper for the plaintiff to ask the court to ratify a foreclosure judgment based on a false affidavit after the fact by simply substituting or supplementing what plaintiff now claims is a proper affidavit.” Rather, I believe vacating the judgment is the proper way to handle these cases, as it removes a judgment based on a false affidavit and gives the homeowner an opportunity to contest a new motion for default or summary judgment.

Judge Nancy Russo of the Cuyahoga County Court of Common Pleas has scheduled a hearing requiring a foreclosure plaintiff “to provide the court with proof of integrity of all documents submitted.” Our office has intervened in the case, US Bank, NA v. Renfro, Cuyahoga County Court of Common Pleas Case No. CV-10-716322. Judge John Bender of the Franklin County Court of Common Pleas issued an order in a foreclosure case requiring that foreclosure counsel “personally certify the authenticity and accuracy of all documents submitted in support of judgment.” Judge Andrew Logan of the Trumbull County Court of Common Pleas sent a letter to foreclosure counsel requiring that affidavits state that the signatory “has personal knowledge of the file and has personally reviewed the documents.” On the litigation front, my lawsuit against GMAC Mortgage continues. GMAC removed the case to federal court, and the case is now in the United States District Court for the Northern District of Ohio. I also continue to work with the 50-state multi-state investigation of robosigning, and we are meeting with a number of interested parties to attempt to craft a solution that benefits both homeowners and lenders. As I have stated before, I urge you to review affidavits in foreclosure cases very closely. Sanctions for filing fraudulent evidence may well be appropriate, and this financial exposure could lead plaintiffs in foreclosure cases to seek negotiated resolutions rather than proceeding to judgment. I will continue to keep you updated on any further developments. Please feel free to contact me or Susan Choe, my Consumer Protection Section Chief, at 614-466-1305, if we can provide any further information about these issues. Thank you. Sincerely,

Richard Cordray Ohio Attorney General CC: Sarah Lynn, Deputy Chief Counsel, Ohio Attorney General Susan Choe, Consumer Protection Section Chief, Ohio Attorney General


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