In at least two Ohio counties, common pleas court judges are adopting new procedures to combat concerns that some lending institutions and loan servicers are filing foreclosure affidavits signed by individuals who lack personal knowledge of the loans in question. If the procedures are not followed, dispositive motions can be denied and/or entire actions dismissed.
In Cuyahoga County, the Common Pleas Court has adopted a Residential Mortgage Foreclosure Affidavit Policy. Among other things, the policy recommends the entry of a standing order in all residential mortgage foreclosure cases, which would require that:
- All affidavits filed in residential mortgage foreclosure cases 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 in the affidavit.
- Before judgment is entered in any foreclosure action, counsel for the foreclosing plaintiff must execute and file an affidavit containing certain information, including a certification that to the best of counsel’s knowledge the pleadings and other court filings in support of foreclosure are complete and accurate in all respects.
In Franklin County, at least one Common Pleas Court judge has started using a specialized case management order in residential foreclosure actions. The order provides that, before judgment is granted on any dispositive motion, counsel for the foreclosing plaintiff must personally certify the authenticity and accuracy of all documents submitted in support of judgment.
While the necessity and/or propriety of these procedures can be debated, it is probably likely that more counties will enact similar procedures.