Why have I been contacted by the Law offices of Clunk Hoose?2020-06-17T10:29:10-04:00

Clunk Hoose is a law firm that handles collection matters for clients seeking to recover debt that is owed. We are here to help companies come to amicable agreements with consumers with outstanding debts.

We act under agreement to:

  • work directly for the original service provider (such as banks, colleges and universities, student loan lenders, telecommunications companies, and other companies)
  • work on behalf of the original supplier (collection agencies) based on a Debt Assignment Agreement

Based on this agreement, we represent the creditor’s interests in amicable or legal procedures in order to collect the debt.

What should I do if I am served with a tax foreclosure?2020-06-17T10:26:44-04:00

If you are served with a tax foreclosure, you should pay any delinquent taxes before penalties and interest begin to accrue, as outlined in FAQ [Should I pay real estate taxes on a property in foreclosure?]. You may determine the amount that needs to be paid by contacting the Auditor’s office in the county in which the property is located. You should also forward a copy of the complaint for tax foreclosure immediately to your attorney’s office so that your attorney may file an answer in the tax foreclosure case to protect your secured interest in the property.

Should I pay real estate taxes on a property in foreclosure?2020-06-17T10:26:51-04:00

The answer to this question depends upon whether the loan is in foreclosure and what stage of the foreclosure process the loan is in. You should pay delinquent real estate taxes pre-foreclosure sale, so that penalties and interest do not continue to accrue on the property because penalties and interest get paid prior to the first mortgage on the property. Conversely, once the property has been sold at sheriff’s sale, you should not pay real estate taxes. After a sheriff’s sale is held, taxes get paid through the confirmation entry. If you pay the taxes after a sheriff’s sale, the confirmation entry would have to be amended to reflect the tax payment made, which in turn would cause delay in getting the deed recorded and the proceeds from the sale of the property.

Are attorney’s fees collectible in an action to collect indebtedness?2020-06-17T10:27:36-04:00

(See Article and statute below.)

§ 1301.21 Enforcement of commitment to pay attorneys’ fees in commercial contract of indebtedness.

Text of Statute

(A) As used in this section:

(1) “Contract of indebtedness” means a note, bond, mortgage, conditional sale contract, retail installment contract, lease, security agreement, or other written evidence of indebtedness, other than indebtedness incurred for purposes that are primarily personal, family, or household.

(2) “Commitment to pay attorneys’ fees” means an obligation to pay attorneys’ fees that arises in connection with the enforcement of a contract of indebtedness.

(3) “Maturity of the debt” includes maturity upon default or otherwise.

(B) If a contract of indebtedness includes a commitment to pay attorneys’ fees, and if the contract is enforced through judicial proceedings or otherwise after maturity of the debt, a person that has the right to recover attorneys’ fees under the commitment, at the option of that person, may recover attorneys’ fees in accordance with the commitment, to the extent that the commitment is enforceable under divisions (C) and (D) of this section.

(C) A commitment to pay attorneys’ fees is enforceable under this section only if the total amount owed on the contract of indebtedness at the time the contract was entered into exceeds one hundred thousand dollars.

(D) A commitment to pay attorneys’ fees is enforceable only to the extent that it obligates payment of a reasonable amount. In determining the amount of attorneys’ fees that is reasonable, all relevant factors shall be considered, including but not limited to, the nature of the services rendered, the time expended in rendering the services, the amount of money and the value of the property affected, and the professional skill and expertise of the attorney or attorneys rendering the services. Unless a court has been requested to make a determination of the amount of attorneys’ fees that is reasonable and finds to the contrary by a preponderance of the evidence, the following are deemed reasonable amounts:

(1) If the commitment to pay attorneys’ fees is based upon a specific percentage of the total principal, interest, and other charges owed on the contract of indebtedness, the percentage of the total so owed as specified in the contract of indebtedness;

(2) If the commitment to pay attorneys’ fees is not based upon a specific percentage of the total principal, interest, and other charges owed on the contract of indebtedness, an amount equal to the attorneys’ fees customarily charged by the attorney or attorneys rendering the services.

HISTORY: 148 v H 292. Eff 5-11-2000.

Not analogous to former RC § 1301.21
(RS § 3171r; GC § 8124; Bureau of Code Revision, 10-1-53),
repealed 129 v S5, § 2, eff 7-1-62.

The provisions of § 3 of HB 292 (148 v –) read as follows:

SECTION 3. Section 1301.21 of the Revised Code applies only to commitments to pay attorneys’ fees that are included in contracts of indebtedness that are enforced, through judicial proceedings or otherwise, on and after the effective date of this act.

Does an entity have to be registered with the State of Ohio before filing an action?2020-06-17T10:27:49-04:00

Yes.  Ohio Revised Code §1703.03 and §1703.29 require that an entity must be registered with the State of Ohio in order to maintain any action in any court in the State of Ohio.  There are exceptions to this registration requirement including: national banks and their subsidiaries, credit unions, title guarantee and trust companies, bond investment companies and insurance companies. Registration must be completed with the Ohio Secretary of State.  Our office offers the service of registering the entity for a minimal fee. Contact our office for more details.

Are there any steps I must take to be able to initiate a foreclosure?2020-06-17T10:27:57-04:00

Yes, and the steps vary based on the type of loan you have. Federal regulations require additional protections for borrowers for some loans, but all residential foreclosures in the state of Ohio must be preceded by mailing a Breach Letter (also known as a Notice of Default) to the borrower at the property.

If you’re not familiar with Breach Letters, our firm can help! The firm routinely prepares these letters for our clients.

Can we postpone a sheriff’s sale in Ohio?2020-06-17T10:28:47-04:00

We are asked quite frequently to postpone sales in Ohio. Sheriff Sales can not be postponed in the State of Ohio. We can only attend or withdraw sales. There are two counties that are exceptionally difficult to withdraw a Sheriff’s Sale and they are Lorain and Medina Counties.

In Lorain County to withdraw a sale for any other reason than bankruptcy, the attorney for Plaintiff, must obtain the complete court cost figure from the Sheriff. The complete court costs must be paid and docketed prior to the Clerk forwarding the Order to Withdraw Sale and receipt to the Judge. Upon proof of payment the Judge will then review the physical file and execute upon same. The Order must be sent back to the Clerk to time-stamp and place on docket. The filed Order to Withdraw Sale is then placed into the proper depository for pickup by the Sheriff’s Department.

In Medina County the Clerk requires a deposit of $500.00 which also must be documented and a court receipt prepared. The Order to Withdraw Sale must be accompanied by the receipt of deposit in order for the Judge to execute upon same. Medina County requires the same steps as Lorain County for review by the Judge and filing by the Clerk. This is the reason we require at least 72 hours notice in order to withdraw a sale in this particular county.

When can I expect to receive proceeds from the sale?2020-06-17T10:28:53-04:00

There are 88 Counties in the State of Ohio, and 88 separate answers to this question.

Generally, the terms of sale require the purchaser to deposit the balance of the purchase price either (a) within 30 days from the date of sale, or (b) within 30 days from the date the sale is confirmed.

Most County Sheriffs are willing to extend this time upon the request of the purchaser. If the purchaser is an investor with readily available funds, the purchase price is usually paid on a timely basis, but if the purchaser is a private individual getting conventional bank financing, the time for payment can get extended for several months. Once the funds are paid, there is an additional delay of several weeks for the County Sheriff to cut the checks and disburse the funds.

If we suspect that the purchaser cannot pay or if the time for payment is being delayed without an adequate reason, we can ask the Court to hold the purchaser in contempt, to vacate the sale, and to schedule another sale of the property. This process can take 3-6 months to get to another sale, and is therefore, initiated only as a last resort.

Why should a complaint be filed after the review of title information?2020-06-17T10:29:00-04:00

A complaint typically should not be filed without title information for several reasons. First, many counties in Ohio require that title be submitted to court along with the complaint, while other counties require that the attorney filing the complaint sign a certificate stating that title has been examined. Second, an examination of title will show whether or not the mortgage to be foreclosed on has been properly executed and recorded, title will identify these problems or potential problems. Third, title identifies all parties who have an interest or potential in the property. A sheriff’s deed will not convey clear title to the real estate unless all parties with a potential interest in the property are joined in the action. Interests of parties not joined will survive the foreclosure and continue to encumber the property after sheriff’s sale. It is therefore necessary to examine title for the proper parties before filing a complaint. Title also provides information as to pending foreclosures and bankruptcy that may hinder the filing of a complaint.

When can I file a Motion for Relief From Stay (MFR)?2020-06-17T10:29:06-04:00

A motion for relief from stay is generally warranted when either the debtor is surrendering the property (essentially giving up on the debt), or we can establish that the lender is not adequately protected.

The criteria for determining adequate protection in a Chapter 7 case is fairly straightforward – is there any equity in the property beyond the sum total of the debts secured by the collateral? If the answer to that question is “no,” then we are usually able to prosecute a MFR in a Chapter 7 bankruptcy case, as there is no equity in the property available for benefit of the bankruptcy estate. In the Southern District of Ohio we will also need to obtain trustee abandonment of the property by separate pleading (in the Northern District both are obtained in a single pleading).

The criteria for a Chapter 13 filing are a little more involved. In order to show a lack of adequate protection in a Chapter 13 case we have to show that the debtor (or the trustee in a conduit or “trustee pay all” plan) is not making the post-petition mortgage payments (those due AFTER the filing of the bankruptcy case). Most of the Ohio bankruptcy courts and judges want to see a post-petition arrearage of three payments before entertaining a MFR in a Chapter 13 case. Under special circumstances (i.e., serial filings indicative of bad faith, or a relatively high payment amount or pre-petition arrearage) a MFR may be justified for something less than the usual three month post-petition delinquency. MFRs in Chapter 13 cases can often be resolved with agreements allowing the debtor to catch up on the post-petition arrearages over a reasonable period of time.

What should I do if I am served with a homeowner’s or condominium association foreclosure complaint?2020-06-17T10:29:21-04:00

Like all foreclosure complaints filed in Ohio, you should forward a copy of the complaint immediately to your attorney’s office to ensure that your mortgage is properly protected. Failure to file a responsive pleading within 28 days after service of the Complaint in a foreclosure action filed against the mortgaged property may result in the release of your mortgage interest and inability to recover any proceeds from the sale of the property. Ohio is not a super lien state.  The association fees will not take priority over a valid prior recorded mortgage lien when it is timely pleaded in the case. There is no requirement that the association fees assessed against the borrower prior title transfer be paid by a lender/servicer.

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