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Generic Motion to Dismiss Foreclosure

Generic Motion to Dismiss Foreclosure

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Published by James V Magee Jr

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Categories:Topics, Art & Design
Published by: James V Magee Jr on Sep 16, 2010
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PlaintiffJudge Andrew WestVs
DefendantsComes the Defendant, by and through counsel, and respectfully move this Court todismiss the within counts on the ground that the Plaintiff is not the real party in interest andtherefore lacks standing to sue. ______________________________ James V. Magee, Jr. (0006809)
Attorney at Law36 East 7th Street, Suite 2020Cincinnati, Ohio 45202Phone: 513-621-9660Fax: 513-345-3900Email: jvmageejr@mageelaw.comAttorney for Defendants Hunt
The Note which is attached to the Complaint, references that the “Lender” (payee) isUnison Financial Group, Inc. Pursuant to the allonge which is attached to the Note dated July 18,2003, the Note was assigned to SIB Mortgage Corp. The mortgage which is attached to the
Complaint references that MERS is acting solely as a nominee for Lender, its successors andassigns and is the mortgagee under the mortgage while Unison Financial Group, Inc. is the“Lender”. The mortgage is recorded in the Office of the Hamilton County, Ohio Registered LandRecords. It has not been assigned of record; however attached to the Complaint as an unmarkedexhibit is an assignment from MERS, as nominee for Unison Financial Group, Inc. to ChaseHome Finance LLC, executed August 10, 2010. The Preliminary Judicial Complaint lists amortgage in favor MERS as nominee for Unison Financial Group, Inc. with no reference to anassignment having been filed on behalf of Chase Home Finance, LLC.In Count One of the Complaint at paragraph 9, Chase Home Finance LLC states it is duea certain sum on the Note. At paragraph 10 of Count One, its states that Plaintiff (Chase HomeFinance, LLC) is entitled to enforce the Note pursuant to Section 1303.31 of the Ohio RevisedCode and the mortgage was given to secure the Note.A review of the Ohio Secretary of State business filings evidences that on April 28, 2008Unison Financial Group, LLC filed a Certificate of Dissolution thereby terminating operations asan Ohio corporation. The question must then be asked who gave MERS the authority to assignthe mortgage in question, as nominee for a company that no longer existed, to the Plaintiff,Chase Home Finance, LLC. An even more important question, which may need to be answered by another tribunal, is how did the assignment become executed in Ohio when MERS offices arein Reston, Virginia and why is it that the alleged Assistant Secretary of MERS is also an attorneyin the employ of the Plaintiff’s counsel and the acknowledgment was taken by an employee of Plaintiff’s lawfirm?In Ohio the holder of the note is also the owner and legally entitled person to exercise adefault under the mortgage. This in light of Ohio case law which holds that:2
For nearly a century, Ohio courts have held that whenever a promissorynote is secured by a mortgage, the note constitutes the evidence of thedebt and the underlying mortgage is a mere incident to the obligation.Therefore the negotiation of a note operates as an equitable assignmentof the mortgage, even though the mortgage is not assigned or delivered.
The Note is endorsed from Unison Financial Group, Inc. to SIB Mortgage Corp., ThePlaintiff cannot claim that this Note is owned by it for unlike a blank endorsement which becomes payable to bearer and may not be negotiated by transfer of possession alone untilspecially endorsed, this Note is specially endorsed to SIB Mortgage Corp., not the Plaintiff.Various sections of the Ohio’s Uniform Commercial Code also support the conclusionthat the owner of a promissory note should be recognized as the owner of the related mortgage.A promissory note is usually a negotiable instrument, which provides the person entitledto enforce the note the right to payment of the obligation it represents.
A person is entitled toenforce a note when that person falls into one of three categories.
One such category is when the person is a holder of the note. Generally, a person is a holder of the note by having physical possession of the note, which has either been endorsed to that person or endorsed in blank.
 Anote may be endorsed by an allonge, which is a paper “affixed to the instrument,” which then becomes part of the instrument.
 Once a note is endorsed, its negotiation is complete upon transfer of possession.
Thetransfer of possession requires physical delivery of the note “for the purpose of giving the person
U.S. Bank National Association v. Marcino
(2009), 181 Ohio App. 3d 328, 900 N.E. 2d 1032 citing Kuck v.Sommers (1950) 50 Ohio Abs 400, 100 N.E.2d 68.
ORC. 1303.03, 1303.31
ORC 1301.31(A)
ORC 1303.22, Comment 1;
Citizens Federal Savings & Loan Assn of Dayton v. Core Inc
.,(1992) 78 Ohio App 3d284, 287, 604 N.E. 2d 772, 774, dismissed 64 Ohio St. 3d 1410
ORC 1303.24(A)(2); Adams v Madison Realty dev. Inc (3d Cir 1988) 853 F2d 163, 167.
ORC 1303.24(A), 1303.21 (A)

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