From an entry on the website of Cleveland, Ohio-area foreclosure defense attorney Marc Dann
- Building on the landmark Wells Fargo v. Jordan Decision,(1) Ohio’s 8th District Court of Appeals (Cuyahoga County) ruled this week that an affidavit alleging that a foreclosure plaintiff held the note prior to filing of a complaint for foreclosure is not sufficient evidence to support a foreclosure judgment.
- In Deutche Bank v. Triplett,(1) the court of appeals held:
“… Deutsche Bank’s affidavit of ownership, sworn out more than a year after the foreclosure complaint was filed, is insufficient to vest the bank with standing to file and maintain the action. Thus, if Deutsche Bank had offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law. Jordan, ¶¶ 22-23.(3)
Source: Affidavits Not Enough to Prove Ownership of a Mortgage Note.
(1) Wells Fargo Bank, N.A. v. Jordan, 2009-Ohio-1092 (Ohio App. 8th Dist., 2009).
(2) Deutsche Bank Natl. Trust Co. v. Triplett, 2011-Ohio-478 (Ohio App. 8th Dist. February 3, 2011).
(3) It should be noted that the recent 8th District (Cuyahoga County) appeals court ruling in Triplett was a reversal of a lower court screw-up allowing for the foreclosure judgment to be entered, a screw-up committed without regard to the binding precedent existing in this case to the contrary. Ohio appeals court Judge Patricia Ann Blackmon makes this observation in writing for the three-judge panel:
- The case law in the 8th District is simple and clear; the putative mortgagee must own the mortgage at the time of the filing of the complaint, otherwise it lacks standing. Wells Fargo Bank, N.A. v. Jordan, Cuyahoga App. No. 91675, 2009-Ohio-1092.
It should also be noted that both this ruling and the court's 2009 ruling in Jordan were unanimous (3-0) reversals involving homeowners facing foreclosure who represented themselves (pro se) in court (although it's certainly possible that they may have had some anonymous, behind-the-scenes attorney assistance with procedural issues, crafting briefs, etc.). Kudos to the homeowners for recognizing the seemingly never-ending screw-ups by rubber stamping trial judges, and for doing something about it. Unlike the vast majority of homeowners who get screwed over in court, the homeowners here exercised their right to have an appellate court review, a right that most facing foreclosure are either unaware of, or lack the wherewithal to pursue.