wamu | FORECLOSURE FRAUD | by DinSFLA - Part 2

Tag Archive | "wamu"

Judge Schack Outstanding Order To Show Cause “plaintiff and plaintiffs’ counsels made material misrepresentations” | JPMORGAN CHASE v. BUTLER

Judge Schack Outstanding Order To Show Cause “plaintiff and plaintiffs’ counsels made material misrepresentations” | JPMORGAN CHASE v. BUTLER


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION AS PURCHASER OF THE LOANS AND OTHER ASSETS OF WASHINGTON MUTUAL BANK, FORMERLY KNOWN AS WASHINGTON MUTUAL BANK, FA (THE “SAVINGS BANK”) FROM THE FEDERAL DEPOSIT INSURANCE CORPORATION, ACTING AS RECEIVER FOR THE SAVINGS BANK AND PURSUANT TO ITS
AUTHORITY UNDER THE FEDERAL DEPOSIT INSURANCE ACT, 12 U.S.C.
9 1821(D),

-versus-

FREDERICK W. BUTLER,

EXCERPTS:

FURTHER, why an Order should not be entered that plaintiff pursued the Prosecution of this foreclosure action, and participated and engaged in actions,Constituting Settlement Conferences Before the Court in this Matter, when plaintiff had full knowledge, and plaintiffs counsel knew or should have known, that plaintiff had received payment on May 22,20 10 for the amount specified in paragraph SIXTH of its complaint dated on or about January 19,2010, as due and owing (that is, $434,382.89);

FURTHER, why an Order should not be entered that plaintiff and plaintiffs’ Counsels made material misrepresentations to the Court, on April 14,201 1 and May 2, 2011, for example, thereby engaging in misconduct before the Court;

[…]

FURTHER, why plaintiffs counsels, the law offices of Steven J. Baum, and their co counsel Cullen & Dykman LLP, should not be sanctioned pursuant to New York Judiciary Law 487 for misstatements and misrepresentations made to the Court on May 2, 2011, to defendant during the course of 11 settlement conferences over 12 months, and to defendant’s counsel and the Court with respect to the fact and procedural history of this case;

FURTHER, why Judgment should not be entered pursuant to CPLR 32111(a)(l), 321 l(a)(3), 321 l(a)(7) and 321 l(a)(8) dismissing this foreclosure action with prejudice;

FURTHER, why judgment should not be entered imposing sanctions against Plaintiff on the basis that plaintiffs affidavit of facts- namely its verified summons and complaint — contained material misrepresentations about its legal capacity to sue, about which plaintiff had full knowledge from commencement of this;

[…]

[ipaper docId=57973278 access_key=key-1sux49su06my9pi4x6pb height=600 width=600 /]

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Goldman Sachs Said to Get Subpoena From New York Prosecutor

Goldman Sachs Said to Get Subpoena From New York Prosecutor


BLOOMBERG:

Goldman Sachs Group Inc. (GS), the fifth- biggest U.S. bank by assets, received a subpoena from the Manhattan District Attorney’s office seeking information on the firm’s activities leading into the credit crisis, according to two people familiar with the matter.


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Goldman should be worried about subpoenas

Goldman should be worried about subpoenas


“I think we found a white elephant, flying pig and unicorn”

REUTERS

Goldman Sachs Group Inc (GS.N) executives have good reason to be worried about the risk of receiving subpoenas from the Justice Department, and investors should be concerned too.

The U.S. government has a real chance of finding inconsistencies between Goldman executives’ testimony to Congress and their internal documents, which means subpoenas could turn into something more serious, lawyers said.

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TAIBBI-ROSNER-SPITZER | re: GOLDMAN Email “UTOPIA” a White Elephant, Flying Pig and Unicorn

TAIBBI-ROSNER-SPITZER | re: GOLDMAN Email “UTOPIA” a White Elephant, Flying Pig and Unicorn


Matt Taibbi, Eliot Spitzer and Joshua Rosner on CNN discuss new fraud probe of three major banks. Big banks could go out of business.

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Matt Taibbi wipes the floor with Megan McArdle re: Goldman Sachs criminality

Matt Taibbi wipes the floor with Megan McArdle re: Goldman Sachs criminality


Crooks and Liars

Matt Taibbi has a new article on Rolling Stone on the recent hearings in the U.S. Senate and whether or not Goldman Sachs executives should be facing criminal trials or not in the wake of ongoing investigations into their part in the financial meltdown we went through a few years ago. CNN decided to bring in the Atlantic Monthly’s Wall Street apologist Megan McArdle to debate Taibbi on Your Money.



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MATT TAIBBI | The People v. Goldman Sachs

MATT TAIBBI | The People v. Goldman Sachs


A Senate committee has laid out the evidence. Now the Justice Department should bring criminal charges

Rolling Stones-

They weren’t murderers or anything; they had merely stolen more money than most people can rationally conceive of, from their own customers, in a few blinks of an eye. But then they went one step further. They came to Washington, took an oath before Congress, and lied about it.


[image: abcnews]

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COMPLAINT | FDIC v. Lender Processing Services, Inc., LSI Appraisal LLC,  Fidelity National Information Services, Inc. et al

COMPLAINT | FDIC v. Lender Processing Services, Inc., LSI Appraisal LLC, Fidelity National Information Services, Inc. et al


FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver of
Washington Mutual Bank,

v.

LSI APPRAISAL, LLC; FIDELITY
NATIONAL INFORMATION
SERVICES, INC.; LENDER
PROCESSING SERVICES, INC.;
LEENDER PROCESSING SERVICES, LLC; LPS PROPERTY TAX
SOLUTIONS, INC., f/k/a FIDELITY
NATIONAL TAX SERVICE, INC.; LSI
TITLE COMPANY;
and LSI TITLE AGENCY, INC.

[ipaper docId=55234793 access_key=key-21ksyhpjhgw03av1x0v9 height=600 width=600 /]

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FDIC Hits Lender Processing Sevices (LPS) with $155 Million Suit, 8k Form Filing

FDIC Hits Lender Processing Sevices (LPS) with $155 Million Suit, 8k Form Filing


According to an 8k form filed on May 10, 2011,

The Federal Deposit Insurance Corporation (“FDIC”), in its capacity as Receiver for Washington Mutual Bank (“WAMU”), filed a complaint on May 9, 2011 in the U.S. District Court for the Central District of California to recover alleged losses of approximately $154,519,000. The FDIC contends these losses were a direct and proximate result of the defendants’ alleged breach of contract with WAMU and alleged gross negligence of the defendants with respect to the provision of certain services by LPS’s subsidiary LSI Appraisal LLC, an appraisal management company. In particular, the FDIC claims that the services provided failed to conform with federal and state law, regulatory guidelines and other industry standards, including specifically the provisions of the Uniform Standards of Professional Appraisal Practice (“USPAP”). LPS previously described the possibility of this suit in its Form 10-Q filed May 5, 2011.

In its complaint, the FDIC cites, as the cause of the damages claimed, 220 appraisals performed between June 2006 and May 2008. However, for more than 75 percent of the appraisals identified by the FDIC, LSI was contracted only to provide reviews of appraisals, not to conduct the initial, full appraisals. For these properties, the full appraisals were provided by other entities, unrelated to LSI. For all appraisals subject to this complaint, LPS believes there is no basis for a claim that LSI engaged in “gross negligence” or breach of contract related to these appraisal services.

LPS stands firmly behind the integrity of the services it provides to the mortgage industry and intends to vigorously defend itself against these allegations.

Source: Edgar Online

H/t Social Apocalypse

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Senate Report on Meltdown Under Justice Department Review

Senate Report on Meltdown Under Justice Department Review


BLOOMBERG-

The Justice Department is reviewing a report by a U.S. Senate panel that said Goldman Sachs Group Inc. (GS) misled clients about the firm’s bets on securities tied to the housing market, according to Attorney General Eric Holder.

Holder told the House Judiciary Committee at a hearing today that the department is reviewing the April report by the Senate Permanent Subcommittee on Investigations, led by Senator Carl Levin, a Michigan Democrat. Holder didn’t say which aspects of the report, which probed the causes of 2008 financial crisis, are under review


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BLACK: There Was “Massive Illegality” In Mortgage Lending

BLACK: There Was “Massive Illegality” In Mortgage Lending


The Immunity Doctrine: Bank Fraudsters Go Free as a Matter of Policy


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Internal emails indicate Deutsche Bank knew they were bankrolling toxic mortgages by Ameriquest and others

Internal emails indicate Deutsche Bank knew they were bankrolling toxic mortgages by Ameriquest and others


iWatch

In 2007, the report says, Deutsche Bank rushed to sell off mortgage-backed investments amid worries that the market for subprime loans was deteriorating.

“Keep your fingers crossed but I think we will price this just before the market falls off a cliff,” a Deutsche Bank manager wrote in February 2007 about a deal stocked with securities created from raw material produced by Ameriquest and other subprime lenders.

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Merrill Lynch Lawyer Told Eliot Spitzer: “Be Careful, We Have Powerful Friends”

Merrill Lynch Lawyer Told Eliot Spitzer: “Be Careful, We Have Powerful Friends”


Spitzer to Holder: Prosecute Goldman Sachs or Resign

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[VIDEO] Sen. Levin Grills Goldman Sachs Exec On “Shitty Deal” E-mail

[VIDEO] Sen. Levin Grills Goldman Sachs Exec On “Shitty Deal” E-mail


VIA:

Senator Carl Levin (D-MI) and former Goldman Sachs Mortgages Department head Daniel Sparks, Senate Governmental Affairs Subcommittee on Investigations hearing, April 27, 2010

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Dylan Ratigan with Louise Story of NY Times “Can We Trust The Regulators?”

Dylan Ratigan with Louise Story of NY Times “Can We Trust The Regulators?”


Dylan Ratigan with special guest New York Times’ Louise Story, discussing the 600+ page report uncovering Goldman Sachs scheme to defraud investors. According to Bloomberg, The U.S. Justice Department and regulators will have to determine whether employees and executives of Goldman Sachs Group Inc. violated any laws when they traded securities tied to the housing market and testified to Congress about the transactions, Senator Carl Levin said.

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Wall Street and the Financial Crisis: Anatomy of a Financial Collapse

Wall Street and the Financial Crisis: Anatomy of a Financial Collapse


United States Senate
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
Committee on Homeland Security and Governmental Affairs
Carl Levin, Chairman
Tom Coburn, Ranking Minority Member

WALL STREET AND
THE FINANCIAL CRISIS:

Anatomy of a Financial Collapse

~

MAJORITY AND MINORITY
STAFF REPORT

PERMANENT SUBCOMMITTEE
ON INVESTIGATIONS

UNITED STATES SENATE

April 13, 2011

In the fall of 2008, America suffered a devastating economic collapse. Once valuable securities lost most or all of their value, debt markets froze, stock markets plunged, and storied financial firms went under. Millions of Americans lost their jobs; millions of families lost their homes; and good businesses shut down. These events cast the United States into an economic recession so deep that the country has yet to fully recover.

This Report is the product of a two-year, bipartisan investigation by the U.S. Senate Permanent Subcommittee on Investigations into the origins of the 2008 financial crisis. The goals of this investigation were to construct a public record of the facts in order to deepen the understanding of what happened; identify some of the root causes of the crisis; and provide a factual foundation for the ongoing effort to fortify the country against the recurrence of a similar crisis in the future.

Using internal documents, communications, and interviews, the Report attempts to provide the clearest picture yet of what took place inside the walls of some of the financial institutions and regulatory agencies that contributed to the crisis. The investigation found that the crisis was not a natural disaster, but the result of high risk, complex financial products;  undisclosed conflicts of interest; and the failure of regulators, the credit rating agencies, and the market itself to rein in the excesses of Wall Street.

While this Report does not attempt to examine every key moment, or analyze every important cause of the crisis, it provides new, detailed, and compelling evidence of what happened. In so doing, we hope the Report leads to solutions that prevent it from happening again.

Click image below to continue…

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FDIC OIG Report: Evaluation of Federal Regulatory Oversight of Washington Mutual Bank, Department of the Treasury, Federal Deposit Insurance Corporation, Report No. EVAL-10-002 April 2010

FDIC OIG Report: Evaluation of Federal Regulatory Oversight of Washington Mutual Bank, Department of the Treasury, Federal Deposit Insurance Corporation, Report No. EVAL-10-002 April 2010


April 9, 2010

John E. Bowman, Acting Director
Office of Thrift Supervision

Sheila C. Bair, Chairman
Federal Deposit Insurance Corporation

This report presents the results of our review of the failure of Washington Mutual Bank (WaMu), Seattle, Washington; the Office of Thrift Supervision’s (OTS) supervision of the institution; and the Federal Deposit Insurance Corporation’s (FDIC) monitoring of WaMu for insurance assessment purposes. OTS was the primary federal regulator for WaMu and was statutorily responsible for conducting full-scope examinations to assess WaMu’s safety and soundness and compliance with consumer protection laws and regulations. FDIC was the deposit insurer for WaMu and was responsible for monitoring and assessing WaMu’s risk to the Deposit Insurance Fund (DIF). On September 25, 2008, FDIC facilitated the sale of WaMu to JPMorgan Chase & Co in a closed bank transaction that resulted in no loss to the DIF.

Section 38(k) of the Federal Deposit Insurance Act requires the cognizant Inspector General to conduct a material loss review (MLR) of the causes of the failure and primary federal regulatory supervision when the failure causes a loss of $25 million to the DIF or 2 percent of an institution’s total assets at the time the FDIC was appointed receiver. Because the FDIC facilitated a sale of WaMu to JPMorgan Chase & Co without incurring a material loss to the DIF, an MLR is not statutorily required. However, given WaMu’s size, the circumstances leading up to WaMu’s sale, and non-DIF losses, such as the loss of shareholder value, the Inspectors General of the Department of the Treasury and FDIC believed that an evaluation of OTS and FDIC actions could provide important information and observations as the Administration and the Congress consider regulatory reform.

Click image to contiue…

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NYT | Eyes Open, WaMu Still Failed

NYT | Eyes Open, WaMu Still Failed


In the crazy days of 2005 and 2006, when home prices were soaring and mortgage underwriting standards were crumbling, it took foresight and judgment to see that it was all a bubble.

As it happens, there was a bank chief executive whose internal forecasts now seem prescient. “I have never seen such a high-risk housing market,” he wrote to the bank’s chief risk officer in 2005. A year later he forecast the housing market would be “weak for quite some time as we unwind the speculative bubble.”

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WaMu execs Kerry Killinger and Steve Rotella respond to FDIC lawsuit. Killinger calls it “political theater:”

WaMu execs Kerry Killinger and Steve Rotella respond to FDIC lawsuit. Killinger calls it “political theater:”


From the Puget Sound Biz Journal:

“The factual allegations are fiction. The legal conclusions are political theater. Trial in a courtroom that honors the rule of law — and not the will of Washington D.C. — will confirm Kerry Killinger’s management, diligence and commitment to Washington Mutual responsibly and consistently served the interests of its depositors, customers and shareholders.”

Killinger added: “Washington Mutual’s management structure was a model of corporate governance.”

Read more: WaMu execs: FDIC suit is “political theater” | Puget Sound Business Journal

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COMPLAINT | F.D.I.C. Sues WAMU Execs. and Wives For $900 Million

COMPLAINT | F.D.I.C. Sues WAMU Execs. and Wives For $900 Million


Via: Brian Davies

THE FEDERAL DEPOSIT INSURANCE
CORPORATION, as RECEIVER of
WASHINGTON MUTUAL BANK
,
Plaintiff,

v.

KERRY K. KILLINGER, STEPHEN J.
ROTELLA, DAVID C. SCHNEIDER,
LINDA C. KILLINGER, and ESTHER T.
ROTELLA
,
Defendants.

[ipaper docId=50971713 access_key=key-20ki1w716u5b98o9s0jl height=600 width=600 /]

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CA Judge Grants ‘TRO, Serious Questions Respect To Fraud Claims” CRUZ v. WAMU

CA Judge Grants ‘TRO, Serious Questions Respect To Fraud Claims” CRUZ v. WAMU


Excerpt:

In his motion for a TRO, Plaintiff argues he has shown a likelihood of success on the merits
of his claims for violation of California Business and Professions Code § 17200 and promissory
estoppel. The Court interprets Plaintiff’s argument regarding his claim for promissory estoppel as
applying to his claim for fraud. The elements of a fraud claim are false representation, knowledge of
falsity, intent to defraud, justifiable reliance, and damages
. Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1106 (9th Cir. 2003). Plaintiff alleges in a verified Complaint and in his motion for a TRO that
a WAMU representative made a knowingly false statement to him with the intent to defraud, upon
which he justifiably relied, causing damages
. Accordingly, Plaintiff has at least raised serious
questions going to the merits with respect to his fraud claim
.

<SNIP>

CONCLUSION

For the foregoing reasons, Plaintiff’s application for a TRO is granted. Defendants and their
agents, employees, representatives, successors, partners, assigns, attorneys, and any and all acting in
concert or participation with them are enjoined from engaging in or performing any act to deprive
Plaintiff of ownership or possession of Plaintiff’s real property located at 919 Brass Way, Encinitas,
California 92024, including, but not limited to, proceeding with the non-judicial foreclosure sale
scheduled for March 18, 2011 and recording any deeds relating to the property. Defendants are
ordered to show cause, on or before March 22, 2011, why a preliminary injunction should not be
issued enjoining Defendants from taking such actions until termination of this case. A hearing shall
be held on Plaintiff’s motion for a preliminary injunction on March 24, 2011 at 2:30 p.m. in
Courtroom 10. This temporary restraining order shall remain in place for 14 days or until this Court
issues an Order on Plaintiff’s motion for a preliminary injunction, whichever shall first occur. The
Court notes, pursuant to Federal Rule of Civil Procedure 65(a)(1), the Court “may issue a preliminary
injunction only on notice to the adverse party.” Furthermore, the Court points out a TRO is binding
only upon parties and their officers, agents, and employees or those acting in concert with them “who
receive actual notice of [the TRO] by personal service or otherwise.” Fed. R. Civ. P. 65(d)(2).
Accordingly, Plaintiff shall forthwith serve a copy of this Order upon all Defendants.

IT IS SO ORDERED.
DATED: March 14, 2011

Continue below…

[ipaper docId=50837684 access_key=key-1pcnw54irgrjuadt6wiu height=600 width=600 /]

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PT. 2 “NO TRUST LOAN TRANSFER” DEPOSITION TRANSCRIPT OF DEUTSCHE BANK NATIONAL TRUST CO. VP RONALDO REYES

PT. 2 “NO TRUST LOAN TRANSFER” DEPOSITION TRANSCRIPT OF DEUTSCHE BANK NATIONAL TRUST CO. VP RONALDO REYES


Affidavit Included

Excerpt: Pg 168

Q. To the best of your knowledge, did Chase ever own Ms. Nuer’s loan?

A. No.

Q.  To the best of your knowledge, was Ms. Nuer’s loan ever transferred out of this trust?

A. No.

Q.  Does the trust continue to own Ms. Nuer’s loan today?

A. Yes.

Q. Is it possible that this loan, Ms. Nuer’s loan, somehow transferred to the trust by Chase in November 2008?

A. No.

[…]

Down Load PDF of This Case

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OHIO JUDGMENT REVERSED FULL Payoff Rejected, Broken Entry (2), FDIC, as Receiver of WAMU v. TRAVERSARI

OHIO JUDGMENT REVERSED FULL Payoff Rejected, Broken Entry (2), FDIC, as Receiver of WAMU v. TRAVERSARI


Don’t you just love it when links and posts go missing for absolutely NO reason whatsoever!

REPOST-

Fed. Deposit Ins. Corp., as Receiver of WAMU v. TRAVERSARI, 2010 Ohio 2406 – Ohio: Court of Appeals, 11th Dist., Geauga 2010
dinsfla | June 5, 2010 at 9:49 am |

2010-Ohio-2406

Federal Deposit Insurance Corporation, as Receiver of Washington Mutual Bank, Plaintiff-Appellee,
v.
Robert Traversari, et al., Defendants-Appellants.
No. 2008-G-2859.

Court of Appeals of Ohio, Eleventh District, Geauga County.

May 28, 2010.

Karen L. Giffen and Kathleen A. Nitschke, Giffen & Kaminski, L.L.C., 1300 East Ninth Street, #1600, Cleveland, OH 44114 and Donald Swartz, Lerner, Sampson & Rothfuss, P.O. Box 580, Cincinnati, OH 45210-5480 (For Plaintiff-Appellee).

Edward T. Brice, Newman & Brice, L.P.A., 214 East Park Street, Chardon, OH 44024 (For Defendants-Appellants).

OPINION
COLLEEN MARY O’TOOLE, J.

{¶1} Appellants, Robert Traversari (“Traversari”) and B & B Partners (“B & B”), appeal from the August 5, 2008 judgment entry of the Geauga County Court of Common Pleas, granting summary judgment in favor of appellee, Washington Mutual Bank, and entitling appellee to a judgment and decree in foreclosure.

{¶2} In 1994, appellant Traversari borrowed $190,000 from Loan America Financial Corporation which was memorialized by a promissory note and further secured by a mortgage on property located at 9050 Lake-in-the-Woods Trail, Bainbridge Township, Geauga County, Ohio. Appellant Traversari obtained the loan individually and/or in his capacity as the sole member and principal of appellant B & B, a real estate based company. The mortgage at issue was subsequently assigned to appellee.

{¶3} On January 8, 2007, appellee filed a complaint in foreclosure against appellants and defendants, JP Morgan Chase Bank, N.A., Charter One Bank, N.A., Jesse Doe, and Geauga County Treasurer. In count one of its complaint, appellee alleges that it is the holder and owner of a note in which appellant Traversari owes $149,919.96 plus interest at the rate of 7.75 percent per year from September 1, 2006, plus costs. In count two of its complaint, appellee alleges that it is the holder of a mortgage, given to secure payment of the note, which constitutes a valid first lien upon the real estate at issue. Appellee maintains that because the conditions of defeasance have been broken, it is entitled to have the mortgage foreclosed. Appellee indicated that appellant B & B may have claimed an interest in the property by virtue of being a current titleholder.

{¶4} Appellants filed an answer and counterclaim on February 16, 2007. In their defense, appellants maintain that appellee failed to comply with Civ.R. 10(D) and is estopped from asserting a foreclosure by its waiver of accepting payment. According to their counterclaim, appellants allege the following: on or about September 25, 2006, appellant Traversari sent a check in the amount of $150,889.96 to appellee for payment in full on the loan, which included the principal of $149.919.96 plus $970 of interest; on or about November 17, 2006, appellee issued a new home loan statement to appellant Traversari indicating the amount due was $5,608.95; appellant Traversari contacted appellee stating that a check had been sent for payment in full; appellee failed to respond; appellant Traversari mailed a check to appellee in the amount of $155,000; no stop payment was issued on the first check; because the house was vacant, appellant Traversari went to check the residence on December 26, 2006, and discovered that it had been broken into; an orange placard was placed on the premises indicating that a representative from appellee would secure the home; appellant Traversari immediately purchased new lock sets, secured the premises, and called and left a message for appellee to inform them to not enter the home; on December 31, 2006, electronic transmission was sent to appellee concerning the break-in and requested appellee to stop breaking into the home as well as to locate the two checks and to send a copy of a letter to a credit bureau; appellee did not respond; appellant Traversari then mailed a check from a separate account in the amount of the last payment demanded by appellee; appellee sent the $155,000 check back with a form letter to the address of the vacant property stating that personal checks were not accepted for payoff; appellee also rejected the $5,674.41 check; appellant Traversari then contacted appellee regarding the rejected checks; on January 11, 2007, appellant Traversari went to the home again, finding the kitchen door open, furnace running, new lock set taken out, garage door openers unplugged, and worse dings in the steel door; and appellant Traversari emailed appellee again, however, appellee indicated it could not give appellants any information because the case had been moved to foreclosure.

{¶5} Appellee filed a reply to appellants’ counterclaim on March 19, 2007, and an amended reply on September 6, 2007.

{¶6} According to the deposition of Maritza Torres (“Torres”), an employee of appellee in its senior asset recovery, loss prevention department, she was assigned to appellants’ case. Torres testified that appellee has no record of having received a check in the amount of $150,889.96 from appellant Traversari on September 25, 2006. However, she indicated that appellee received a check from appellant Traversari on September 30, 2006, in the amount of $102,538.74 (“Check #1?), which was returned to him due to appellee’s policy not to accept checks for early payoffs that are not certified funds.

{¶7} According to the deposition of Linda Rae Traversari (“Linda”), appellant Traversari’s wife, she is the handler of the family assets. Following the return of Check #1, appellee forwarded a delinquency letter to appellant Traversari in early November of 2006. Later that month, appellee sent a second default letter to him. Linda testified that on or around November 30, 2006, appellant Traversari sent another personal check for early payoff to appellee in the amount of $155,000 (“Check #2?). Appellee returned Check #2 with a letter explaining that noncertified funds are not accepted for early payoff. Linda stated that on January 2, 2007, appellant Traversari sent a third personal check via certified mail to appellee in the amount of $5,674.41 (“Check #3?). By the time appellee received Check #3, the loan had been referred to foreclosure. Check #3 was returned to appellant Traversari as “insufficient.”

{¶8} On March 14, 2008, appellee filed a motion for summary judgment pursuant to Civ.R. 56(b). Appellants filed a response on April 21, 2008.

{¶9} In its July 3, 2008 order, the trial court found, inter alia, that appellee was within its legal rights to reject the personal checks; appellee had the right to institute and maintain the foreclosure because appellants did not cure their default; and appellee had the right to enter the premises. Thus, the trial court indicated that appellee’s motion for summary judgment would be granted in its favor as to all issues and claims against appellants upon appellee’s presentation of an appropriate entry to be provided to the court.

{¶10} Appellee filed a “Motion For Submission Of Its Entry Granting Motion For Summary Judgment And Decree In Foreclosure” on July 11, 2008, and an amended entry on July 21, 2008. Appellants filed objections to appellee’s proposed amended entry the following day.

{¶11} Pursuant to its August 5, 2008 “Amended Entry Granting Summary Judgment And Decree In Foreclosure,” the trial court granted summary judgment in favor of appellee, entitling appellee to a judgment and decree in foreclosure. The trial court ordered, inter alia, that unless the sums found due to appellee are fully paid within 3 days from the date of the decree, the equity of redemption shall be foreclosed, the property sold, and an order of sale issued to the Sheriff directing him to appraise, advertise, and sell the property. The trial court further ordered that the proceeds of the sale follow the following order of priority: (1) to the Clerk of Courts, the costs of the action, including the fees of appraisers; (2) to the County Treasurer, the taxes and assessments, due and payable as of the date of transfer of the property after Sheriff’s Sale; (3) to appellee, the sum of $149,919.96, with interest at the rate of 7.75 percent per annum from September 1, 2006 to February 29, 2008, and 7.25 percent per annum from March 1, 2008 to present, together with advances for taxes, insurance, and costs; and (4) the balance of the sale proceeds, if any, shall be paid by the Sheriff to the Clerk of Court to await further orders. It is from that judgment that appellants filed the instant appeal, raising the following assignment of error for our review:

{¶12} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTSA-PPELLANTS IN ITS ORDER GRANTING IN PLAINTIFF-APPELLEE’S FAVOR AS TO ALL ISSUES AND CLAIMS AND AGAINST DEFENDANTS, AND ITS AMENDED ENTRY GRANTING SUMMARY JUDGMENT AND DECREE IN FORECLOSURE TO PLAINTIFF-APPELLEE AGAINST DEFENDANTS-APPELLANTS.”

{¶13} In their sole assignment of error, appellants argue that the trial court erred by granting summary judgment in favor of appellee, and entitling appellee to a judgment and decree in foreclosure.

{¶14} “This court reviews de novo a trial court’s order granting summary judgment.” Hudspath v. Cafaro Co., 11th Dist. No. 2004-A-0073, 2005-Ohio-6911, at ¶8, citing Hapgood v. Conrad, 11th Dist. No. 2000-T-0058, 2002-Ohio-3363, at ¶13. “`A reviewing court will apply the same standard a trial court is required to apply, which is to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law.’” Id.

{¶15} “Since summary judgment denies the party his or her `day in court’ it is not to be viewed lightly as docket control or as a `little trial.’ The jurisprudence of summary judgment standards has placed burdens on both the moving and the nonmoving party. In Dresher v. Burt [(1996), 75 Ohio St.3d 280, 296,] the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim. The evidence must be in the record or the motion cannot succeed. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case but must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party’s claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial. If the nonmoving party fails to do so, summary judgment, if appropriate shall be entered against the nonmoving party based on the principles that have been firmly established in Ohio for quite some time in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112 ***.” Welch v. Ziccarelli, 11th Dist. No. 2006-L-229, 2007-Ohio-4374, at ¶40.

{¶16} “The court in Dresher went on to say that paragraph three of the syllabus in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 ***, is too broad and fails to account for the burden Civ.R. 56 places upon a moving party. The court, therefore, limited paragraph three of the syllabus in Wing to bring it into conformity with Mitseff. (Emphasis added.)” Id. at ¶41.

{¶17} “The Supreme Court in Dresher went on to hold that when neither the moving nor nonmoving party provides evidentiary materials demonstrating that there are no material facts in dispute, the moving party is not entitled a judgment as a matter of law as the moving party bears the initial responsibility of informing the trial court of the basis for the motion, `and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim.’ Id. at 276. (Emphasis added.)” Id. at ¶42.

{¶18} In the case at bar, the record establishes that appellant Traversari sent personal checks to appellee for payment on the loan at issue. However, appellee returned the checks with letters indicating they would not be accepted as payment because they were not certified, and foreclosure proceedings commenced.

{¶19} There is no genuine issue of material fact that appellants executed and delivered a note and mortgage to appellee. However, a genuine issue of material fact does exist with regard to the fact that appellant Traversari tendered the entire principal payment and appellee rejected it because the payment was made by personal check. See Chase Home Fin., LLC v. Smith, 11th Dist. No. 2007-P-0097, 2008-Ohio-5451, at ¶19. The dates and amounts of the personal checks are conflicting due to the testimony and/or evidence submitted by the parties.

{¶20} “A cause of action exists on behalf of a damaged mortgagor when, in conformity with the terms of his note, he offers to the mortgagee full payment of the balance of the principal and interest, and the mortgagee refuses to present the note and mortgage for payment and cancellation.” Cotofan v. Steiner (1959), 170 Ohio St. 163, paragraph one of the syllabus.

{¶21} Appellant Traversari did not place any conditions on the personal checks tendered to appellee. We note that “[t]he essential characteristics of a tender are an unconditional offer to perform, coupled with ability to carry out the offer and production of the subject matter of the tender.” Walton Commercial Enterprises, Inc. v. Assns. Conventions, Tradeshows, Inc. (June 11, 1992), 10th Dist. No. 91AP-1458, 1992 Ohio App. LEXIS 3081, at 5. (Emphasis sic.)

{¶22} “It is an implied condition of every contract that one party will not prevent or impede performance by the other. If he does prevent or impede performance, whether by his prior breach or other conduct, he may not then insist on performance by the affected party, and he cannot maintain an action for nonperformance if the promises are interdependent.” Fed. Natl. Mtge. Assns. v. Banks (Feb. 20, 1990), 2d Dist. No. 11667, 1990 Ohio App. LEXIS 638, at 8-9, citing 17 American Jurisprudence 2d, Contracts, Sections 425, 426.

{¶23} In the instant matter, paragraph 3 of the Open-End Mortgage provides:

{¶24} “3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under paragraphs 1 and 2 shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable under paragraph 2; third; to interest due; fourth, to principal due; and last, to any late charges due under the Note.”

{¶25} Here, there was no new note and mortgage, nor agreement for application of payments, when the mortgage at issue was subsequently assigned from Loan America Financial Corporation to appellee. Rather, it was the policy of appellee to require mortgagors to pay by certified check for any amounts over $5,000. According to appellee’s employee, Torres, she indicated that any amount over $5,000 not paid by certified funds puts the company at risk because it can take anywhere between 7 to 10 days for a personal check to clear. We note, however, that the mortgagee has up to 90 days to verify the sufficiency of the underlying funds before satisfying and releasing its recorded mortgage. R.C. 5301.36(B). In the instant case, it would have been reasonable for appellee to have either waited 7 to 10 days for appellant Traversari’s checks to clear or to have inquired with his bank, see, generally, Hunter Sav. Assn. v. Kasper (Sept. 25, 1979), 10th Dist. No. 78AP-774, 1979 Ohio App. LEXIS 11777, at 13, if there were sufficient funds before returning any of his 3 personal checks and commencing foreclosure proceedings.

{¶26} The lender in this case unilaterally refused the debtor’s payment by check due to itsinternal policy that an amount over $5,000 had to be made by certified check. The terms and conditions of the mortgage, however, do not impose such a requirement. Under paragraph 3 of the Open-End Mortgage, it appears the lender had an obligation to apply the payment tendered, by personal check or otherwise. Its refusal to present the check for clearance and apply the payment on the ground of internal policy appears to have violated the debtor’s rights.

{¶27} Construing the evidence submitted most strongly in favor of appellants, we must conclude that genuine issues of material fact remain. Again, a genuine issue of material fact exists with regard to the fact that appellant Traversari tendered the entire principal payment and appellee rejected it because the payment was made by personal check. Also, the dates and amounts of the personal checks are conflicting due to the testimony and/or evidence submitted by the parties. Thus, the trial court erred by granting appellee’s motion for summary judgment.

{¶28} For the foregoing reasons, appellants’ sole assignment of error is well-taken. The judgment of the Geauga County Court of Common Pleas is reversed and the matter is remanded for further proceedings consistent with this opinion. It is ordered that appellee is assessed costs herein taxed. The court finds there were reasonable grounds for this appeal.

Trapp, P.J., Rice, J., concur.

Defendants are not named parties to the instant appeal.

The matter was stayed. On November 26, 2008, the Federal Deposit Insurance Corporation was substituted for appellee Washington Mutual Bank. This court instructed the Clerk of Courts to correct the docket by removing “Washington Mutual Bank” and substituting “Federal Deposit Insurance Corporation, as Receiver of Washington Mutual Bank” as appellee in this appeal. The stay order automatically dissolved on August 29, 2009.

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