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Court Vacates (Two) Default Judgments per Schwartzwald

October 1, 2014

Read the case below; an excellent ANALYSIS of subtle differences in lack of subject matter jurisdiction results in VOID order v. a court having SMJ—but not having personal jurisdiction over the parties or failure in STANDING before filing the suit (VOIDABLE, etc.)

These arguments can be applied in any STANDING/JURISDICTION analysis in state or federal court.

It also provides good arguments for a motion to set aside a default judgment in federal court under FRCP, Rule 60 and shows how the court applies holdings of OHIO SUPREME COURT (a STATE court), showing again how, although federal courts apply federal procedural rules (i.e FRCP 60), they apply the federal rules by looking to STATE LAW (Ohio Supreme Court) on SUBSTANTIVE ISSUES (the merits of the arguments) (the ERIE doctrine).

 

National Collegiate Student Loan v. Beverly

The complaints did not allege that the Trusts held any interest in the loans whether by assignment or any other means... and the Notes make no reference to the Trusts.

Read more.

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No foreclosure is ‘perfected’ and/or ‘complete’ until the Original Promissory Note is either returned to the signor or canceled by the court.

"In the case of original mortgages and promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated."- Johnson v. Hudlett

This is not being done.


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Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager

 

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