David and Goliath will meet again in a case scheduled for oral arguments on Wednesday morning, Jan 27, 2016, in the Supreme Court of Ohio. This battle is 'live' feed for those so inclined and can be watched here: http://www.sconet.state.oh.us/videostream/flash.asp
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR
SOUNDVIEW HOME LOAN TRUST 2005-
4, ASSET-BACKED CERTIFICATES,
SERIES 2005-4,
Plaintiff-Appellant,
v.
GLENN E. HOLDEN, et al.,
Defendants-Appellees.
COURT ROOM ANTICS
After being poked in the eye, the beast gestures a classic thumb to nose response....
Deutsche Bank seeks redress on an issue they wish to put to bed on behalf of Trustees everywhere. Ohio is a state where Deutsche Bank has freely put it's foot in it's mouth by ignoring playground rules, cheating to win, and bullying those who stand their ground. With brazen attitude, Deutsche Bank argues to reclaim it's losses against Holden, and appeals to the Supreme Court of Ohio.
From the case file submissions, found on this link...
http://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2014/0791
Deutsche Bank resumes their arguments of standing and note holder rights. Is it mortgage, note, or both? Obviously, Deutsche Bank is going to prefer an 'either-or' situation versus a 'yes or no' condition. The judges of Ohio now reviews these standing issues on a case by case basis without any definitive answer (or one satisfactory to DBNT). Deutsche Bank's legal twisting adds or removes commas seeking meaning not necessarily intended, asking questions unrelated to cause for dismissal while expanding their rights, so here we go again...
"While the facts of this case present the question of whether a mortgagee has standing to
enforce a mortgage, there is ample support for the more general proposition that standing to
enforce the note or mortgage provides standing to enforce the other. As discussed in pages 17-21
of DBNTC’s Brief, the Restatement of Property 3d § 5.4 provides that the party entitled to
enforce either the note or mortgage also has the right to enforce the other. Expressly applicable
to this case, the Restatement states: “[e]xcept as otherwise required by the Uniform Commercial
Code, a transfer of a mortgage also transfers the obligation the mortgage secures unless the
parties to the transfer agree otherwise.” Restatement § 5.4(b). This is the “note follows
mortgage” rule. "
Deutsche Bank also contends "There is no potential harm" and truly wishes to keep the legal status quo of "the note follows the mortgage" strategy as it works well for them. Adding, "The Holdens’ contrary proposition of law is a hyper-technical attempt to impose unnecessary requirements on a plaintiff seeking foreclosure."
Certainly, DB would like to keep the simpler and less technical requirement of standing currently required to seize and sell certain pool related assets that just happen to be someone's home.
Additional requirements would require an adjustment to processing and it would take way too much time to develop the NextGen version of RS document protocol. (NewGRS sys2016) Who wants that? Can we patent it? Can it be located overseas? OH! The robosigners hands are now cramped enough! Worse yet, we don't want to open document doors on any pre, post, or active foreclosure processing requirements for such irrelevant note sales and swaps that may be taking place during these protracted foreclosure cases! Nor do we want to involve the covert records of MERS and their "subscription only" note transfer system. So, absolutely, on behalf of DB, judge PLEASE keep it simple!!!
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In Holden's response to this appeal to the Supreme Court of Ohio, Attorney Marc Dan argues against Deutsche Banks' haughty desire for special privilege and opportune work around for fast tracking legislation via court opinions.
Marc Dan is no stranger to poking the beast and does not scare easily. It appears he has fashioned a strong and long spear and is poising it's launch, aiming for the right eye. Again. It's only a matter of time before the proper launch takes off and lands SQUARELY BETWEEN THE EYES that makes the beast fall and kills the zombie of bad paper debts created by "securitized foreclosure rights" of the "alleged" note holders. Mind you, small investors and pension funds have been settled or sued for their losses. The real or "alleged" noteholders have evolved into bottom feeding 3rd party debt collectors acting under Trustee cover. Insurance policies have been collected and additional sales, swaps, side bets, and seizures are pure profit.
The US government propped them all back up hoping for a soft landing. Gave them food when they were starving. Yet, the beast is still bold and brazen, devouring homes and quashing families, in spite of being fed to stay calm, and wholly ignoring the DOJ mandate to chew with your mouth closed!
http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=747909.pdf
"This case does not present an issue of great general interest because the issues presented
in this appeal were resolved by this Court's decision in Fed. Home Loan Mtge. Corp. v.
Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. It is uncontroverted that Appellant Deutsche
BanK National Trust Company, as Trustee for Soundview Home Loan Trust 2005-4, AssetBacked
Certificates, Series 2005-4 (hereinafter "Deutsche Bank as Trustee") was not the original
lender and filed a complaint for foreclosure attempting to enforce a note payable to Novastar
Mortgage, Inc. The Ninth District Court of Appeals correctly reversed the judgment of
foreclosure because a material issue of fact remained for trial when the affidavit filed in support
of Appellant's motion for summary judgment contained a note with an indorsernent inconsistent
with the note attached to the complaint.
Due to the inconsistencies between the copies of the note and the lack of an
explanation based on personal knowledge as to how Deutsche Bank came to offer two
different copies of the note into the record, this Court concludes that there is a genuine
issue of material fact as to whether Deutsche Bank was the holder of the note at the time
the complaint was filed. Accordingly, the trial court erred in granting Deutsche Bank's
motion for summary judgment on its foreclosure complaint.
Deutsche Bank Natl. Trust Co. v. HoZden, 2014-Ohio-1333, ¶15.
Appellant Deutsche Bank as Trustee did not have a valid interest in the note and
mortgage when the complaint in foreclosure was filed and lacked standing to file a foreclosure
complaint. This Court held in Schwartzwald:
"It is fundamental that a. party cornmencing litigation must have standing to sue in order
to present a justiciable controversy and invoke the jurisdiction of the common pleas court. Civ.R.
17(A) does not change this principle, and a lack of standing at the outset of litigation cannot be
cured by receipt of an assignment of the claim or by substitution of the real party in interest. Fed.
Honae Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017,^, 41.
Appellant Deutsche Bank as 'Trustee mentions the certified conflict case SRMOF 2009-1
Trust v Lewis, Case No 2014-0485 recently accepted by this Court on the issue of what needs to
be attached to a complaint to demonstrate standing, but the issue in a summary judgment
decision is not about standing to file a complaint - it's about whether a factual issue remains for
trial on whether or not the plaintiff is entitled to enforce the note and mortgage. The case
SRMOF 2009-1 Trust v Lewis, 2014-0hio-71 involved an appeal from a motion to vacate a
judgment and is not of a similar procedural posture to Appellees Glenn and Ann Holden's case.
In the conflict case B.4C Home Loan Servicing v. McFerren, 2013-Ohio-322$ the gth District
Court of Appeals correctly determined that being a mortgagee without having possession of the
note would not permit foreclosure because the mortgage is merely security for the note
obligation.
Appellees Glenn and Ann Holden's case involved a summary judgment decision and the
Ninth District Court of Appeals correctly held that a material issue of fact remained for trial.
This appeal is not of great general interest, it is just another case where Appellee Deutsche Bank as Trustee filed for foreclosure without the legal right to do so."
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"Based on the standard that applies for a summary judgment motion the Ninth District
Court of Appeals correctly reversed the judgment of foreclosure on the basis that factual
issues remained for trial."
"Appellants Glenn and Ann Holden respectfully request that the Supreme Court of Ohio
decline jurisdiction over this case."
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I do not know the answer here, but feel the chances of these Ohio Supreme Court Judges picking up on related or pertinent matters, such as the fraud involved in these exchanges of "notes" and their allegedly illicit presentations in court, may better direct us all. Deutsche Bank is definitely taking a risk. I certainly would like to know how many times a bank can present different versions of "true and correct" notes, debts, accounting, assignments, and signatures, before they (Trustees) are dismissed in full. Deutsche Bank just doesn't understand how to NOT cheat and like a classic bully seeks to redirect attention and shout louder than others once they lose their anticipated prize.
Die Deutsche Bank verlassen Taube poop auf vor der Haustür und Bürgersteige überall!
Don't step in it.
