PDF file - six pages - 'In Re: Foreclosure Cases'
The crux of the case seems to come down to this paragraph:
In each of the above-captioned Complaints, the named Plaintiff alleges it is the holder and owner of the Note and Mortgage. However, the attached Note and Mortgage identify the mortgagee and promisee as the original lending institution — one other than the named Plaintiff. Further, the Preliminary Judicial Report attached as an exhibit to the Complaint makes no reference to the named Plaintiff in the recorded chain of title/interest. The Courts Amended General Order No. 2006-16 requires Plaintiff to submit an affidavit along with the Complaint, which identifies Plaintiff either as the original mortgage holder, or as an assignee,trustee or successor-in-interest. Once again, the affidavits submitted in all these cases recite the averment that Plaintiff is the owner of the Note and Mortgage, without any mention of an assignment or trust or successor interest. Consequently, the very filings and submissions of the Plaintiff create a conflict. In every instance, then, Plaintiff has not satisfied its burden of demonstrating standing at the time of the filing of the Complaint.
These seem like serious defects. The judge is unable to establish a clear chain of title here. As others have noted, if you want the court system to compel someone to pay a debt obligation to another party, you have to make sure that the party being paid has an unambiguous legal claim to that payment. Otherwise, you might have a third party eventually stepping in and asserting a claim on the same obligation.
So, yes, it comes down to paperwork, but some very important paperwork - and as long as that paperwork is missing, I don't see how the claimants in this case can establish an unambiguous claim on these particular mortgage obligations.
The ruling also notes that:
Ohio law holds that when a mortgage is assigned, moreover, the assignment is subject to the recording requirements of R.C. § 5301.25. Creager v. Anderson (1934), 16 Ohio Law Abs. 400 (interpreting the former statute, G.C. § 8543). “Thus, with regards to real property, before an entity assigned an interest in that property would be entitled to receive a distribution from the sale of the property, their interest therein must have been recorded in accordance with Ohio law.” In re Ochmanek, 266 B.R. 114, 120 (Bkrtcy.N.D. Ohio 2000) (citing Pinney v. Merchants’ National Bank of Defiance, 71 Ohio St. 173, 177 (1904).
So we are also getting into the state law of Ohio, which may or may not go beyond the recording requirements of the UCC (and I'm not an Ohio law expert, so I don't know which components of the UCC Ohio has or hasn't adopted).
I understand your fundamental argument as 'the payments are not being made on these mortgages; clearly SOMEONE is owed, and SOMEONE should hold the foreclosure rights.'
And while that is true, the burden is on the party seeking foreclosure to establish proper title, and to present paperwork that complies with state law.
“These seem like serious defects.”
I predict it will be reversed. Now that I see the actual language used by the court, it seems even more inexplicable.
Apparently, the mortgagee DID submit the original note and mortgage, so I don’t see how there could possibly be a subsequent assignee. An assignment of mortgage might be subject to the recording statutes, but the recording statutes do not protect the mortgagor. They protect a potential subsequent assignee of the mortgage. And with the 2001 change to the UCC, they don’t even do that since the mortgage automatically follows the note, and the note can be transferred by mere delivery.
Like I said before, the judge was just playing a game of gotchya. He was looking for reasons to throw out the case. That’s not justice.