The Centers for Disease Control and Prevention on Friday clarified the nationwide eviction moratorium that it had issued on September 4, 2020, lasting through the end of the year. That clarification (“Frequently Asked Questions”) is linked here.

Some important points from the FAQ:

  • The Order does not prevent owners from commencing eviction proceedings so long as the actual eviction (which we interpret to mean the set out) does not take place until January. As we see it, this means that evictions can proceed to writ, but the set out must wait until January.
  • As set forth in this blog entry, the protection to a tenant under the eviction moratorium is trigged when the tenant signs a CDC form that certifies all of the following (every adult residing in the unit must sign the form for the moratorium to take effect).
    • The individual has used best efforts to obtain government assistance for the payment of rent.
    • The individual falls below the above-income thresholds.
    • The individual can’t pay rent due to loss of income or medical expenses.
    • The individual is using best efforts to pay the rent or as much of it as he can.
    • Eviction would render the individual homeless.
  • An owner may cross examine (or perhaps conduct discovery as the Court would allow) as to the truthfulness of those certifications. Previously, the rule was ambiguous on this point, leading to inconsistent application throughout the thousands of jurisdictions handling executions in the nation.
  • Landlord are not required to inform tenants of their rights under the CDC Order.
  • The clarification reiterates that (a) tenants still owe their rent and (b) tenants have a duty to make partial rent payments as they are able.
  • The clarification reiterates the criminal penalties for tenants making material misrepresentations on the CDC form.

Friday’s FAQ pronouncement tilts the effect of the moratorium in favor of landlords. Given that the set out in Ohio typically is six-to-eight weeks after the start of the process (the 3-day notice), the real delay in recovering possession of a landlord’s property from a non-paying tenant is now under 30 days.

The scope of the moratorium is limited to situations where the default is solely the non-payment of rent. Our firm has successfully worked with landlords who need to recover possession of their property from hold over tenants, squatters, those causing physical damage to property, those involving illegal use and sale of drugs, too many occupants and other lease violations.

Please call our experienced landlord/tenant litigators if you have questions. Contact Julie Gugino (513.943.5669) for more information.

 

As many in the Ohio real estate, title and finance industries are aware, this firm along with the firm of Markovits, Stock and Demarco are co-counsel to several Plaintiffs challenging a long-running real estate scam that has ensnared hundreds of victims in the greater Cincinnati marketplace.

The Complaint alleges causes of action under Civil RICO, Civil Conspiracy, Breach of Fiduciary Duty by both the various Build Realty companies, First Title and Pat Connors, Negligence against First Title and Pat Connors, Unjust Enrichment, and a declaration that the various schemes designed to avoid the statutory right of redemption and the right of a borrower to excess proceeds under a lending arrangement are illegal, and that the trusts themselves are illegal and contrary to public policy.

The defendants in the proposed Amended Complaint include:

  • Build Realty, Inc.
  • First Title Agency, Inc.
  • Edgar Construction, LLC
  • Cincy Construction, LLC
  • McGregor , First Title, LLC
  • Cowtown Holdings, LLC
  • Build SWO, LLC
  • Greenleaf Support Services, LLC
  • Gary Bailey as Trustee and individually
  • George Triantafilou, as trustee and individually
  • Robert Scott Whiteside
  • G2 Technologies, LLC
  • GT Financial, LLC
  • Five Mile Capital Partners, LLC
  • Smith Graham & Co., Investment Advisors, L.P.
  • Pat Connors

A copy of the proposed form of Amended Complaint is here and below.

It appears this case will soon be moving forward before Federal District Court Judge Cole.

We will endeavor to keep victims updated by means of this blog as developments occur.

If you have questions, it’s best to email Christopher P. Finney. You may also call him at 513-720-2996.

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Faith is the Overcoming Victory! 1 John 5:4-5 - Therefore Now ...

Well, that didn’t take long.

On Monday, Finney Law Firm filed suit against Hamilton County’s Municipal Court Judges  at the Ohio Supreme Court to make them re-open eviction proceedings that had been shut down since March 15.

Just last week, presiding Judge Heather Russell had signed an order extending the eviction moratorium through July 1, and the Clerk was not scheduling new hearings until the end of July. In fact, the Clerk’s office was telling prospective plaintiffs that they had no idea when eviction court would re-open.

As is reported here, Hamilton County was the second-to-last of Ohio’s 88 counties to re-open eviction court.

On Wednesday, the Judges met and, possibly motivated by our law suit, voted to re-open eviction proceedings  essentially immediately, Monday, June 8. We’ll consider that a victory for our client!

We also want to thank the Cincinnati Real Estate Investors’ Association (CREIA) and the Ohio Real Estate Investors’ Association (OREIA)  for their initiation and funding of the suit!

Finally, our co-counsel, Curt Hartman led the legal team on this quick and successful battle.

Jennifer Edwards Baker of Fox 19 has the story here.

Dan Horn of the Enquirer has the story here.

Hamilton County Court House

The COVID-19 crisis has created a series of delays in civil and criminal cases.  One of those casualties has been residential evictions in Hamilton County.

The problem

No evictions hearings have been held since March 15, and the earliest they are scheduling new hearings at present is July 28. This means not only that landlords can’t clear their properties of tenants who won’t pay rent, but also that tenants who deal drugs, damage property — or even worse criminal behavior — can stay in possession now for more than five months before the landlord can have a hearing to restore possession of the property to him.

Suing the Judges

Finney Law Firm has initiated a relatively unused action — for a Writ of Procedendo — to force the Hamilton County Municipal Court Judges to proceed with forcible entry and detainer actions. The Complaint, captioned State Ex rel. Salvador Properties v. Judge Heather Russell is here.

Other counties

Below is what our research has shown other counties currently are doing (note “per normal” noted below means you can timely get a decision in an eviction case; there may be modified procedures and hours to accommodate the crisis):

  • Butler County: Holding hearings per normal;
  • Warren County: Holding hearings per normal;
  • Clermont County: Holding hearings per normal;
  • Franklin County (Columbus): Holding hearings per normal;
  • Montgomery County (Dayton): Holding hearings per normal;
  • Summit County (Akron and all Municipal Courts): Holding hearings per normal;
  • Lucas County (Toledo): Holding hearings per normal;
  • Mahoning County (Youngstown): No hearings being scheduled; and
  • Cuyahoga County (Cleveland and all Municipal Courts): Cleveland and Cleveland Heights are holding hearings after 6/15/20 and 6/17/20, respectively, and other Municipal Courts (Shaker Heights and Berea) are holding hearings per normal.

So, of surrounding counties and Ohio’s major urban counties, only Mahoning (Youngstown) and two of four Municipal Courts in Cuyahoga County are further delaying eviction hearings for COVID-19 issues. Other than Youngstown with no hearings being scheduled at all, Hamilton County presently is the worst in the State for scheduling eviction hearings.

Conclusion

This suit is one in a series of actions initiated by Finney Law Firm to re-open Ohio business and Courts that have been closed under the COVID-19 crisis. For more information, contact Chris Finney (513.943.6655).

Federal District Court Judge Douglas Cole today issued  an important 51-page decision in Compound Property Management, LLC, et al, v. Build Realty, Inc., et al., the real estate/RICO class action  law suit that seeks to stop what Finney Law Firm alleges are illegal and fraudulent practices by a group of Defendants and obtain monetary recovery for our clients.  Potential class action members number more than 450.

Defendants who participated in the scheme include:

  • Build Realty, Inc.
  • Edgar Construction, LLC
  • Cincy Construction, LLC
  • MacGregor Holdings, LLC
  • Cowtown Holdings, LLC
  • Build NKY, LLC
  • Greenleaf Support Services, LLC
  • Build SWO, LLC
  • Gary Bailey
  • George Triantafilou
  • First Title Agency, LLC
  • GT Financial, LLC
  • G2 Technologies, LLC

You may read the federal Complaint here.

You may read Federal District Court Judge Cole’s the ruling on the Defendants Motions to Dismiss here.

For more information on this case, continue to monitor this blog, or contact Chris Finney at 513-720-2996.

As we have written here and here, the coverage provided by title insurance is particularized to the policy issued, and that is usually tailored to the property insured.

Background

In other words, when someone wants to buy a property, the title insurance company hires a title examiner who conducts a title search of the subject property and ascertains monetary liens, easements, covenants, restrictions, and other encumbrances against that property to be insured. Then, a title insurance policy is prepared that lists as exceptions to coverage the encumbrances found to be of record. It has to be this way; an insurer simply can’t insure against and over valid easements and other encumbrances.

As we have discussed previously, then, for a buyer/insured to know the quality of title he is receiving, it is not enough to obtain an Owner’s Policy of Title Insurance.  Someone has to read the policy and read and understand the encumbrances excepted from coverage.

For almost all parcels in urban and suburban areas, there are some easements, and if you are not careful there could be monetary liens that need to be released. These might be subdivision (residential and commercial) covenants, reciprocal easement and maintenance agreements, utility easements (which circle every commercial and residential subdivision) and other easements and covenants.

Very occasionally, typically in a rural area with no recent development, you will find a parcel with no easements, no covenants, no restrictions, and no monetary liens, but it’s a relative rarity.

My friend is buying an investment property

So, this week, a friend of mine called me.  He was helping his daughter who invests in real estate with financing a property for a “flip.”  Someone else has selected another title company, and he asked me to assure that the title would be clear.

I told him, as I have advised on this blog, someone needs to review the deed, and someone needs to carefully review both the title insurance policy and the exception documents referenced therein.

So, he asked the title insurance company for a copy of the policy pro forma, or a commitment for title insurance and the exception documents.

The clueless clerk at a title company

In return, a clueless clerk at said title company sent a blank form policy, with only pre-printed Schedule B-1 exceptions. These are such standard things as taxes not yet due and payable, things a  survey would disclose, and mechanics liens. Many of these pre-printed exceptions can be deleted by means of a Title  Affidavit provided by the seller at closing, but none of them reveal the exceptions to be taken by a title examination of the specific property.

In other words a title company would be crazy to issue such a policy, as it would insure over actual title deficiencies that would create a loss to the title company to remove such restrictions or pay for any “damage” arising from their existence.

An innocent inquiry to get the real policy

Therefore, I wrote to the clueless clerk as follows:

I have reviewed the documents you sent to my client in this matter, and candidly they are not at all helpful or informative.

 A title policy is only as good as its terms, and the terms of a title policy are dependent on the exceptions to coverage set forth in Schedules B-1 and B-2.  The form you sent is just a blank form.  Now, if you are promising to issue a policy with no exceptions, except those pre-printed, that is great.  Just confirm that.  If not, we will need to (a) know exactly what the exceptions are to the policy being issued (i.e, this actual policy to this actual buyer for the purchase price for this actual property) and (b) see and read the exception documents, meaning we will need copies of them.

 Let me know and thank you.  

I thought it was pointed, but polite.

What just happened?

Her response simply stunned me:

Every policy that we issue is free of exceptions except for those that are pre-printed.

I hope this clarifies the issues laid out so we can remain on schedule.

This is amazing. Her response indicates that on every policy (not just this one) that they write, they don’t bother to perform a title examination, and make no exception to coverage.

I mean this is fantastic for buyer, but not the underwriter. Every title problem magically is insured over, and a buyer is always assured they have fee simple, unencumbered, absolutely clear title in every closing.

I want some of that coverage!

Conclusion

So, I told my client: “Close”! You can’t get coverage that good from me or any other title company.  That is simply amazing.

[Now, notwithstanding her promises, I look forward to seeing the language of the actual policy when it is delivered to my client, and my subsequent insistence that the title company issue precisely the coverage that had been promised. This should be fun!]

Yes, that really happened this week.

Hamilton County property owners will get some measure of relief in the form of a 25 day delay for payment of the second half property tax bills.

Property owners who pay taxes as part of their monthly mortgage payment will not notice any difference, but property owners who normally pay their tax bill by June 22, will have until July 17 to make that payment.

As reported by the Cincinnati Enquirer, Hamilton County Treasurer Robert A. Goering noted that the delay is necessary in part due to the fact that taxpayers cannot get into the Treasurer’s office to make a payment:  “We have to balance the needs financially of the county and the needs of the individual taxpayer. And we have to balance that against the reality that, right now with this crisis, you can’t actually get to the treasurer’s office.”

Thus far, we are unaware of any other local counties who have delayed the property tax bills. We will update this post if any other counties join Hamilton County.

Warren County will continue with its normal tax bill due date of July 29.

Clermont County property tax bills are due July 8.

Butler County property taxes are due August 3.

In Kentucky, the deadline to initiate a property valuation appeal has been extended to begin on July 6 and end on July 20.

Jane Schulte

There have been numerous articles written about Remote Online Notarization (or RON) in the past few months, surrounding the Covid-19 pandemic, and the real estate industry’s need to perform work digitally to ensure that sales, purchases and refinances can occur during the social distancing orders currently in place.

However, there has been some confusion surrounding terminology and differences in digital closings, and we are writing this article is to provide some clarity.

E-closing

An e-Closing or electronic closing is a mortgage closing in which all the documents are created, accessed, presented, signed, notarized and recorded electronically. They remain in their digital form and nothing is printed out. An e-Closing is conducted with the signor(s) and Notary in each other’s physical presence, thus not accomplishing the objective of full separation of the notary/closer and the parties.

Hybrid closing

A hybrid closing is the same as an e-Closing except that the Promissory Note is papered out and wet-signed (sometimes along with the mortgage), so again the procedure does not accomplish the objective of physical separation.

Remote Online Notarization (RON)

A RON closing, on the other hand, uses an e-Notary to perform notarial acts when the signor is not in the same physical location as the notary.  The signor appears before an e-Notary in a live, recorded two-way audio/visual conference where identification is verified with a photo ID along with knowledge-based authentication technology.  A platform such as DocVerify, provides a tamper-evident seal and uses encryption and multi-layered security to prevent fraud.

Conclusion

Ivy Pointe Title is pleased to announce that it has an in-house e-Notary to provide these services for cash, lender and refinance real estate transactions.  Craig Donohoe, our in-house closer, is now able to perform RON closings for any lender, realtor, borrower or seller who would like the opportunity to sign their documents in the comfort of their homes or businesses, not only to avoid social contact at this time, but also in the future for convenience, speed and efficiency that has not previously existed in our industry.  We also have a second dedicated outside e-notary, Ted Dahmus, who is committed to priority e-closings for Ivy Pointe Title.

For more information on how to place your RON title and closing order, please contact Rick Turner (513.943.5660).