FAL Ma, 001 RICHARD CORDRAY ‘OHIO ATTORNEY GENERAL Soptember 28, 2010 Via US. Mail ‘The Honorable Judge James L. Kimbler Medina County Court of Common Pleas 93 Public Square Medina, OH 44256-2205 Re: Foreclosure Affidavits Dear Judge Kimbler, T write you, and the other presiding and administrative judges of the Ohio Courts of Common Pleas, to draw your attention to an issue that may be of interest to you. ‘As yon are aware, when a plaintiff in a foreclosure case moves for default or summary judgment, it will attach an affidavit from the lender or mortgage servicer attesting to the ownership and default status of loan. During the last week, questions have arisen about the validity of the foreclosure affidavits filed by a large servicer, GMAC Mortgage. GMAC (also operating as “Ally Financial”) issued a press release on September 20, 2010 announcing that it had directed certain of its vendors to suspend evictions and REO closings becauso of “a potential issue that was raised in a number of existing foreclosures challenging the internal procedure we used for executing one or more judicially zequired forms.” ‘A number of media outlets, including The Washington Post and The New York Times, reported on this statement. The news articles suggest that GMAC’s actions are related to a Florida deposition and a Maine deposition given by one of its employees, Jeffrey Stephan. Mr. ‘Stephan signed thousands of foreclosure affidavits for GMAC, but in his depositions stated that he does not have knowledge of how the information in the affidavit is determined (Deposition of Jeffrey Stephan, June 7, 2010, p 30), docs not know how the accuracy of the information is Yerified (Jd), does not review the exhibits attached to the affidavit (Id. p 54), does not read every paragraph of the affidavit (Id. p 61), and docs not have the affidavit notarized in his presence (Id, p 56). ‘The depositions were not taken by my office, so T do not opine on their accuracy, but I wanted to draw your attention to this issue. At least one court has found that filing affidavits that {falsely claim personal knowledge is a violation of the Ohio Consumer Sales Practices Act when filed in connection with consumer transactions. Midland Funding, LLC v. Brent, 644 P. Supp. 24 961, 977 (ND. Ohio, 2009). More broadly, I urge you as administrators to share this letter with your colleagues and ‘urge them to exercise caution when approving any foreclosure orders involving GMAC. Further, hie Ana Conant Office 0 Bane Beoud S178 # Cats, O80 43215 + PHONE 64 AGE ISR) © FAS LAGS 5087 @ wrrw OhsAnoroeyGenel gor PAGE 1/2* RCVD AT 1042040 11:52:51 AM [Eastern Daylight Time]* SVR:RIGHTFAXI2* DNIS:1082* CSID:* DURATION (mmsss):01-08AN FAX Mo, 7.002 O0T/D4/2010/MON 11 T encourage you to consider whether additional administrative procedures need to be established to protect homeowners who are facing the threat of foreclosure. Issues similar to those surounding GMAC have arisen in Ohio. For example, my office filed an amicus brief in an appellate case where a foreclosure affidavit averred that it was executed in Florida but the jurat and notarization stated that it was executed in New Jersey. The 2™ District Court of Appeals ruled that the trial court did not abuse its discretion by striking the faulty affidavit. HSBC Bank USA v. Thompson, 2010-Onio-A158, Please feel free to contact me or my Consumer Protection Section Chief, Susan Choe, at 614.466.1305, if we can be of any assistance regarding this letter. ‘Thank you. Sincerely, Lebsl) Coben, Richard Cordray Ohio Attorney General ce: ‘Sarah Lynn, Deputy Chief Counsel, Ohio Atiorney General Susan Choe, Consumer Protection Section Chief, Ohio Attomey General 2 PAGE 2/2* RCVD AT 1042040 11:52:51 AM Easter Daylight Time]* SVR:RIGHTFAXI2* DNIS:1082* CSID:* DURATION (mmsss):01-08