Guys...I do foreclosures. Robert, while your case is undoubtedly valid case law...it is an extreme example. There are safety valves built into foreclosure actions to reopen the case within a certain time period...cite in the lender that was not included as a defendant...amend the complaint, and foreclose the additional lender's mortgage. If the time period for reopening has lapsed there is the ability to file a claim for title insurance. The title insurer impleads the abstractor to seek reimbursement from his e&o insurer.

Not to sure how you guys handle foreclosures in Ohio, but here in Connecticut no less than three title searches are done in connection with a foreclosure. The initial search is to determine who are the encumbracers on the property. All encumbrancers are listed in the complaint. Senior encumbrancers are not named as defendants...junior encumbrancers are because it is their interests that are being foreclosed.

Most foreclosures never go to trial in Connecticut. Most of the time the defendant is defaulted for failure to disclose a defense (He usually does not have one). The case is then resolved through a motion for judgment of either strict foreclosure or foreclosure by sale. If the Defendant does assert a defense...the matter is usually resolved through a motion for summary judgment.

A second title search is performed by the Plaintiff to avoid precisely the problem that Robert has described. It determines whether any parties were missed the first time round, and if there are new encumbrancers who recorded after the foreclosure was filed and a lis pendens was recorded. If the new encumbrancers  recorded their liens after the lis pendens was recorded, they are foreclosed without any need to cite them in as  defendants. If they recorded after the last title search and filing of the case, but before the lis pendens was recorded, they must be cited in as  defendants to foreclose their  interests. You never proceed with a judgment after default or a motion for summary judgment until the second title search has been completed.


After judgment has been entered and title has passed to the Plaintiff by strict foreclosure or foreclosure by sale, a third and final title search is completed prior to recording the foreclosure certificate or the foreclosure committee deed.

I think the case that you have cited above can be distinguished on the facts from the scenario described by George. If I understand Robert's case there was the matter of a missed mortgage in a foreclosure action involving a subsequent sale by warranty deed and a subsequent suit for breach of warranty. It would seem that ultimately among the parties to the suit a claim for title insurance would be filed, and the matter would most likely be settled.

If I understand George's scenario...the home owner is filing a questionable claim for no other purpose that to get out from under a foreclosure action filed by his lender...isn't gonna happen. If the mortgage being foreclosed has priority, the encumbrance will be foreclosed. If the lien in question has priority over the mortgage, it is a matter to be resolved by the lender's title insurer.

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