How can you commence an action if you don’t have the proof you’re entitled to to enforce the action in the first place?
Must Lender Have Current Ownership Interest in Promissory Note or Mortgage at the Time Foreclosure Action Is Filed?
Or May Lack of Standing Be ‘Cured’ Through Mortgage Assignment Before Judgment?
Federal Home Loan Mortgage Corp. v. Duane Schwartzwald et al., Case nos. 2011-1201 and 2011-1362 Second District Court of Appeals (Greene County)
ISSUE: If a party files a lawsuit to foreclose on a mortgage and it is later shown that party did not have a current ownership interest in the mortgage or the underlying promissory note on the date the foreclosure action was filed, is the court required to dismiss the suit based on the plaintiff’s lack of standing to bring it? Or may the plaintiff “cure” a defect in standing or in naming the actual party in interest under Civil Rule 17(A) by obtaining an assignment of the mortgage prior to the court’s entry of a judgment in the case?
The Supreme Court of Ohio will hold an oral argument on the merits in this case on Wednesday, April 04, 2012. Time allowed for oral argument will be 15 minutes per side.
A Simple question was before the OHIO SUPREME COURT JUSTICES:
To have STANDING, as a plaintiff, in a mortgage foreclosure action, must a party show that it owned the NOTE and the MORTGAGE when the complaint was filed?
Be sure to listen to audio for the latest SURPRISING TWIST!
WKSU–
The Ohio Supreme Court is getting ready to take on what some are calling the biggest issue in state foreclosure law in a century. The question before the justices is what paperwork does a lender need to force an owner out of his home? For Ohio Public Radio, WCPN’s Mhari Saito reports that what the state’s justices decide could have huge implications for the financial services industry.
U.S. Bank National Assoc.
v.
Antoine Duvall et al.
This cause is pending before the Court on the certification of a conflict by the Court of Appeals for Cuyahoga County. On review of the order certifying a conflict, it is determined that a conflict exists. The parties are to brief the issue stated in the court of appeals’ Judgment Entry filed January 31, 2011, as follows:
“To have standing as a plaintiff in a mortgage foreclosure action, must a party show that it owned the note and the mortgage when the complaint was filed?”
It is ordered by the Court that the Clerk shall issue an order for the transmittal of the record from the Court of Appeals for Cuyahoga County.
The conflict cases are U.S. Bank, N.A. v. Bayless, Delaware App. No. 09
CAE 01 004, 2009-Ohio-6115, U.S. Bank, N.A. v. Marcino, 181 Ohio App.3d 328,
2009-Ohio-1178, Bank of New York v. Stuart, Lorain App. No. 06CA008953,
2007-Ohio-1483, and Countrywide Home Loan Servicing, L.P. v. Thomas, Franklin
App. No. 09AP-819, 2010-Ohio-3018.
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94714
U.S. BANK NATIONAL ASSN.
PLAINTIFF-APPELLANT
vs. ANTOINE DUVALL, ET AL.
DEFENDANTS-APPELLEES
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-638676
BEFORE: Sweeney, J., Gallagher, A.J. and DeGenaro, J.*
RELEASED AND JOURNALIZED: December 30, 2010
{¶ 15} Accordingly, we conclude that plaintiff had no standing to file a
foreclosure action against defendants on October 15, 2007, because, at that time,
Wells Fargo owned the mortgage. Plaintiff failed in its burden of demonstrating
that it was the real party in interest at the time the complaint was filed. Plaintiff’s
sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
SEAN C. GALLAGHER, A.J., and
*MARY DEGENARO, J., CONCUR
*(Sitting by Assignment: Judge Mary DeGenaro of the Seventh District Court
of Appeals.)
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