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‘MERS’ HAS NO STANDING: A Judge Who sees the TRUTH

‘MERS’ HAS NO STANDING: A Judge Who sees the TRUTH


This Judge sees it exactly what it is:

LARRY A. JONES, J., DISSENTS (WITH SEPARATE OPINION)
LARRY A. JONES, J., DISSENTING:

{¶ 70} I respectfully dissent from my learned colleagues in the majority.
I believe there is evidence in the record to support reversal.

{¶ 71} In Wells Fargo Bank, N.A. v. Jordan, Cuyahoga App. No. 91675,
2009-Ohio-1092, this court held that Civ.R. 17 is not applicable when the
plaintiff is not the proper party to bring the case, and thus does not have
standing to do so. Id. at 21, citing Northland Ins. Co. v. Illuminating Co.,
Ashtabula App. Nos. 2002-A-0058 and 2002-A-0066, 2004-Ohio-1529, at ¶17.

{¶ 72} In Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285,
2008-Ohio-4603, Wells Fargo, the plaintiff, filed a complaint for foreclosure on
January 23, 2007. Id. at ¶2. In Byrd, as in the case at bar, Wells Fargo
stated in the complaint that it was the holder and owner of the mortgage and
the Note. Id. Wells Fargo was assigned the Note and mortgage on March 2,
2007, after the complaint had been filed. Id. at ¶3. The Byrd court
concluded, “[u]nless a party has some real interest in the subject matter of
the action, that party will lack standing to invoke the jurisdiction of the
court.” (Emphasis added.) Id. at ¶10.

{¶ 73} Here, MERS, as nominee, filed its complaint on May 21, 2004.
MERS filed an assignment on July 2, 2004, which was signed on May 26,
2004. The facts in this matter fit squarely with the facts in both the Byrd
and Jordan opinions. Byrd and Jordan held that a party must, at the time
of filing, have a bona fide interest in the litigation in order to invoke the
court’s jurisdiction. The only interest MERS had at the time of filing in this
case was its “nominee” status under the mortgage. MERS attempted to
correct this by an assignment of the Note after the date of filing the
complaint. However, MERS was never the Note holder. See, R.C.
1303.22(A); R.C. 1303.31.

{¶ 74} After the alleged assignment was signed, MERS was only a
nominal party. After the loan closed, and long before litigation commenced,
Bank One sold the loan to Fannie Mae. MERS did not bear the loss upon
default. In fact, MERS is not the beneficial owner of the Note and only
stands in the shoes as servicer. If the Property were to be sold at a sheriff’s
sale, MERS would have no right to determine the amount of the bid, nor
would it be able to take title.

{¶ 75} Appellants did not waive their right to argue standing, and
plaintiff filed the assignment after it filed the complaint. Indeed, appellee
admits that the Note was not assigned until May 26, 2004, five days after
MERS commenced suit.

{¶ 76} MERS did not maintain a bona fide interest in the real property
or litigation and is therefore not the real party in interest. Accordingly, I
would find MERS lacked standing and could not properly invoke jurisdiction.

{¶ 77} Accordingly, I would sustain appellants’ first assignment of error.

Appendix A

Appellants’ Assignments of Error:

I. “The trial court erred as a matter of law and to the prejudice of appellants in
finding that MERS maintained standing to properly invoke the trial court’s
jurisdiction.”

II. “The trial court erred as a matter of law and to the prejudice of appellants in
failing to conduct an independent review of the evidence as mandated under
Civ.R. 53 and therefore abused its discretion in adopting the magistrate’s
decision.”

III. “The trial court erred as a matter of law and to the prejudice of appellants in
granting judgment to MERS and against appellants on their counterclaims.”

IV. “The trial court erred as a matter of law and abused its discretion in its
determination of the admissibility of evidence

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