Saturday, October 18, 2014

Philly DA Pinches Lawyer, Two Funeral Directors, Three Others In Alleged Scheme To Hijack Title To Dead Widow's Home, Car; Estate Fleeced While Victim Lays Buried In Pauper's Grave

In Philadelphia, Pennsylvania, The Philadelphia Inquirer reports:
  • The anonymous caller who dialed the Philadelphia District Attorney's Office last year had a disturbing tale to tell: A woman was dead, and someone was trying to steal her home and Buick LeSabre.

    That tip led to a yearlong grand jury investigation that culminated Thursday with charges against six men - including a lawyer, a real estate agent, and two funeral directors - who prosecutors say schemed to steal the dead South Philadelphia woman's rowhouse and car.

    "The facts in this case are disturbing and extremely sad," District Attorney Seth Williams said. "It's hard to believe that people would steal a dead woman's house and personal property."

    The six men - Andrew Kaufman, Romanoff Quarles, Vincent Marciano, Marvin Kimble, Antoine Turay, and Damion Rivers - were charged with conspiracy, theft, receiving stolen property, forgery, and perjury. All were either arrested Thursday or expected to surrender, Williams said.

    He credited the caller, whose tip about the thefts sparked an investigation by the Public Corruption Task Force of the District Attorney's Office. "I would like to thank the concerned resident who contacted my office to report their suspicions," Williams said. "Too often, we don't listen to gut instincts, and in this case, not only was it right, it helped uncover an elaborate criminal conspiracy."

    As authorities outlined it:

    Dorothy Kennedy lived with her husband, Frank, in their Marshall Street rowhouse for almost 40 years before he died in 2008.

    In 2010, Dorothy Kennedy died at age 79, leaving no heirs or will, but a well-kept home with a concrete front yard and shade tree out front.

    The 2005 LeSabre, still in the name of her husband, was parked out back.

    With no heirs to claim the property, it would, by law, go to the state.

    But, according to the grand jury report, Quarles, 43, who lived around the corner on Johnson Street, decided he wanted the house instead.

    According to the report, his lawyer, Kaufman, 56, of Cherry Hill, then devised "a scheme that would allow Quarles to unlawfully exploit the system."

    Kaufman told Quarles to apply to become administrator of the estate. To do so, the lawyer said, Quarles would need to represent - falsely - that he had supported Kennedy before her death.

    So Quarles obtained old calendars and marked them to make it seem that he had been regularly running errands for Kennedy. Kaufman said it would help if Quarles collected Kennedy's body from the morgue and buried her, the report said.

    Enter Kimble and Turay.

    Kimble, 57, who had once owned a funeral home at 53d and Vine Streets, directed Quarles to Turay, who owns the Turay Memorial Chapel in North Philadelphia.

    Turay buried Kennedy for $1,400, but gave Quarles a bill saying the burial cost $7,000. Quarles used the bill in a court petition to become administrator of Kennedy's estate.

    Kennedy was buried in a pauper's grave.

    The group then enlisted the help of Marciano, 63, a South Philadelphia real estate broker, who organized a sham sale of the home.

    Quarles, records show, took ownership of the home in 2012.

    And finally, there was Rivers, who used his family's West Philadelphia auto business to help transfer the car title to Quarles.

    To complete the transaction for the car, Quarles forged Frank Kennedy's signature five years after he had died.

Friday, October 17, 2014

Ex-Con Pinched For Allegedly Using Phony Deed To Hijack Title, Possession Of Elderly Woman's Vacant NYC Home

In Laurelton, Queens, the New York Post reports:
  • He may soon be living for free ­behind bars.

    The ex-con who allegedly filed a fake deed to steal an elderly woman’s Queens home was arrested Tuesday in Housing Court, where he was brazenly fighting eviction.

    Darrell Beatty, 49, was charged with grand larceny and criminal possession of stolen property for allegedly illegally transferring the deed of a Laurelton home into his name and moving in with his two sons.

    The Post on Sunday reported the alleged scheme, which could send Beatty to prison for more than 15 years.

    It was sweet relief for Jennifer Merin, whose family bought the house in 1930. “I heard the words, ‘You’re under arrest,’ and I [thought], ‘Thank God,’ ” said Merin, who saw sheriffs take Beatty into custody in a hallway. “I think I almost fainted with joy at that moment. I have really been waiting to hear those words for so long. I hope he is put away for a long time.”

    Beatty allegedly filed a deed transfer in March listing himself as the owner of the three-bedroom ­Tudor, which had been empty for a decade with Merin living in Manhattan, prosecutors said Tuesday.

    He listed the previous owner as Edith Moore, but nobody by that name has ever owned the property, said Queens DA Richard Brown.

    Merin still had many of her family’s prized possessions in the home, which Beatty piled up in a heap in the garage. She first realized the home was ­being illegally occupied when her water bill spiked in late May. “This woman’s home — her sanctuary filled with the memories of three generations — was allegedly taken from her with the filing of a phony deed,” Brown said.

    Merin’s Russian and Ukrainian grandparents moved into the row house on 141st Avenue in 1931 and raised three children there, including Merin’s mom.“The house was maintained basically as a sanctuary to my family,” Merin told The Post, adding that she paid insurance, taxes and utility bills on the property and would visit every few months.

    “The arrest is, in part, resolution. Obviously it doesn’t get me my house back, it doesn’t get me any of my belongings back,” Merin said. “But at least it gives me a sense of that there is some kind of right­eousness in our city and that people are working on making justice prevail.”

    Beatty was arraigned at Queens Criminal Court and held on $29,000 bail Tuesday.
Source: Ex-con arrested for filing fake deed to steal woman’s home.

For an earlier story, see The extraordinary ‘theft’ of a woman’s NYC home.

For the Queens District Attorney press release, see Queens Man Charged With Filing Fake Deed And Stealing Family Home From Elderly Woman (If Convicted The Defendant Faces Up To 15 Years In Prison).

Sunday, October 12, 2014

Ohio Supremes Use Procedural Grounds To OK Improperly Commenced Foreclosure By Standing-Lacking Lender "Even If A Plaintiff’s Assertion Of Standing Was Patently False"; Homeowners' Failure To Challenge Lower Court Ruling On Bankster's Standing On Direct Appeal Fatal To Their Effort To Undo Foreclosure Judgment; State High Court Dissenters: Majority "Goes To Great Lengths To Preserve A Void Judgment ... Creates Uncertainty In Foreclosure Cases That Will Operate In Favor Of Careless Banks While Eroding The Rule Of Law In Ohio"

From a recent Opinion Summary from Justia US Law:
  • Bank of America, N.A. filed a complaint in foreclosure against George and Bridget Kuchta, claiming to be the holder of a promissory note and assignee of the mortgage. The trial court granted summary judgment to the bank and entered a decree of foreclosure in its favor.

    The Kuchtas moved to vacate the summary judgment and decree of foreclosure, arguing that the bank lacked standing to commence the action because it did not prove ownership of the note and because the mortgage assignment was fatally flawed. The trial court denied the motion. The court of appeals reversed, holding that standing is a jurisdictional matter and that Bank of America’s alleged lack of standing would warrant relief from judgment.

    The Supreme Court reversed, holding that a lack of standing cannot support a motion for relief from judgment, and lack of standing does not render a judgment void for lack of subject matter jurisdiction.(1)
Source: Bank of Am., N.A. v. Kuchta.

For the ruling, see Bank of Am., N.A. v. Kuchta, No. 2014-Ohio-4275 (October 8, 2014).

Editor's Note: The following Ohio non-profit legal services firms joined to file a "friends of the court" brief with the Ohio Supreme Court urging support for the homeowners' position in this case:

(1) From the majority opinion:

    {¶ 25} An allegation that a plaintiff fraudulently claimed to have standing may not be asserted as a ground for vacating the judgment under Civ.R. 60(B)(3). Further, lack of standing is an issue that is cognizable on appeal, and therefore it cannot be used to collaterally attack a judgment. And although standing is required in order to invoke the jurisdiction of the court over a particular action in foreclosure, lack of standing does not affect the subject-matter jurisdiction of a court of common pleas.

    For these reasons, we answer the certified question in the negative and hold that lack of standing cannot support a Civ.R. 60(B)(3) motion for relief from judgment, even if a plaintiff’s assertion of standing was patently false.

    We further hold that lack of standing does not render a judgment void for lack of subject-matter jurisdiction. We therefore reverse the judgment of the Ninth District Court of Appeals and reinstate the judgment of the Medina County Court of Common Pleas, denying the Kuchtas’ Civ.R. 60(B) motion.

From the dissenting opinion:
  • O’NEILL, J., dissenting.

    {¶ 26} I dissent. I would affirm the Ninth District’s decision to remand this case to the trial court for application of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214. While it is axiomatic that Civ.R. 60 (B)(3) is not a substitute for appeal, it is nonetheless clear that in this matter, Bank of America simply lacked standing to invoke the jurisdiction of the common pleas court under Schwartzwald in the first place. I disagree with the majority’s reasoning that the lack of a justiciable controversy between the parties does not affect the subject-matter jurisdiction of the court. That is a proposition that threatens the very foundation of our judicial system. Courts exist to resolve real controversies between real parties in interest. Nothing more.

    {¶ 27} At the trial court level, the Kuchtas, who appeared pro se, unequivocally asserted that the bank did not have standing to file the complaint in foreclosure. It was error for the trial court to allow the proceedings to go forward, but go forward they did. The Ninth District, having read this court’s recently released decision in Schwartzwald, correctly found that the Kuchtas’ Civ.R. 60(B) motion contained sufficient allegations of operative facts to warrant a hearing, citing State ex rel Richard v. Seidner, 76 Ohio St.3d 149, 151 666 N.E.2d 1134 (1996), and correctly remanded the case to the trial court for application of Schwartzwald. Bank of Am. v. Kuchta, 9th Dist. Medina No. 12CA0025-M, 2012-Ohio-5562. It was an abuse of discretion for the trial court to deny the Kuchtas a hearing on their Civ.R. 60(B)(3) motion for relief from judgment.

    {¶ 28} More than once in Schwartzwald, we stated that standing is a jurisdictional requirement. Schwartzwald at ¶ 22, 24, 27, and 38. This court unanimously agreed that it is fundamental that a party commencing litigation must have standing to sue in order to present a justiciable controversy and invoke the jurisdiction of the common pleas court. Id. at ¶ 41. This court repeatedly emphasized that standing must exist at the time of filing of the complaint, id. at ¶24, 25, and that lack of standing cannot be cured by postfiling events, such as the receipt of an assignment of the claim or by substitution of the real party in interest. Id. at ¶ 26, 27, 37, 38, and 41.

    {¶ 29} But in this case, the majority holds that Bank of America’s lack of standing to initiate the foreclosure action at the time of filing of the complaint has “does not affect the subject-matter jurisdiction of the court in which the party is attempting to obtain relief.” Majority opinion at ¶ 23.

    {¶ 30} What does this rule mean in practical terms? Does it mean that if the defendant in any given case fails to challenge standing on appeal, then the standing issue is forfeited in favor of the party who did not have standing to invoke the jurisdiction of the common pleas court in the first place?

    {¶ 31} The majority’s reliance on Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, is misplaced at a minimum. Rather, application of Pratts to this case demands exactly the opposite outcome. Pratts was a habeas action stemming from a capital case in which, after waiving his right to a jury trial, Pratts submitted his guilty plea to a single judge rather than a three-judge panel as required by statute. Pratts at ¶ 2-3. The Pratts court determined that the statutory errors committed by the trial court did not divest the court of its
    subject-matter jurisdiction. Id. at ¶ 36.

    {¶ 32} There was no dispute in Pratts that the case was properly commenced in the common pleas court. However, that is precisely the issue in this case, since this case was not properly commenced. On June 1, 2010, the date Bank of America filed the complaint, it was not the holder of either the mortgage or the note. The assignment of the mortgage was not complete until at least June 10, 2010. Thus, on the date the complaint was filed there was no injury, and
    therefore as a matter of law no justiciable controversy, between Bank of America and the Kuchtas. See also Schwartzwald at ¶ 28. As a result the court was without jurisdiction to consider—much less rule on—this complaint. Any judgments the trial court rendered on this complaint were void and subject to attack at any time. Pratts at ¶ 11.

    {¶ 33} The Ninth District got this case right when it concluded that the Kuchtas’ Civ.R. 60(B)(3) motion contained sufficient operative facts to warrant a hearing and remanded the case to the trial court for application of Schwartzwald. Instead of affirming the Ninth District, this court goes to great lengths to preserve a void judgment. And in so doing, it undermines this court’s own rule in Schwartzwald and creates uncertainty in foreclosure cases that will operate in favor of careless banks while eroding the rule of law in Ohio. I dissent.

    PFEIFER, J., concurs in the foregoing opinion.