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Deutsche Bank National Trust Company v Hutchinson 07-Cv-03108 Final Order of Dismissal 01 Nov 2007

Deutsche Bank National Trust Company v Hutchinson 07-Cv-03108 Final Order of Dismissal 01 Nov 2007

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This document is the final order of dismissal entered by Judge David D. Dowd, in the case, Deutsche Bank National Trust Company as Trustee of Argent Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Series 2005-W5 v. Gary Hutchinson, et al, Case No. 1:07-cv-03108. Judge Dowd had previously signed a simple show cause order on October 17, 2007, which directed that the plaintiff furnish proof of its standing by October 31, 2007. When the plaintiff failed to furnish the requestite proof, this case was dismissed without prejudice for lack of standing in this final ordered dated October 31, 2007, and filed of record on PACER on November 1, 2007.
This document is the final order of dismissal entered by Judge David D. Dowd, in the case, Deutsche Bank National Trust Company as Trustee of Argent Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Series 2005-W5 v. Gary Hutchinson, et al, Case No. 1:07-cv-03108. Judge Dowd had previously signed a simple show cause order on October 17, 2007, which directed that the plaintiff furnish proof of its standing by October 31, 2007. When the plaintiff failed to furnish the requestite proof, this case was dismissed without prejudice for lack of standing in this final ordered dated October 31, 2007, and filed of record on PACER on November 1, 2007.

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Published by: William A. Roper Jr. on Dec 12, 2010
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04/02/2011

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Plaintiff cites Federal Home Loan Mortgage Corp. v. Lamar, No. 1:05cv1455 (N.D.Ohio Aug. 22, 2006), for the proposition that standing exists to file a complaint even though, asof the date of filing, assignment of the mortgage to plaintiff had not yet occurred. Plaintiff claims that, in FHLMC, another branch of this court relied upon an affidavit of an employee of amortgage servicing company as proof that the plaintiff was the holder of the note and mortgage.That argument ignores the fact that the plaintiff in FHLMC actually was the holder since it hadpurchased the note and mortgage from the original holder on November 14, 2001. Theforeclosure complaint was not filed until May 23, 2005. In this case, there is no informationbefore the Court that the plaintiff purchased or otherwise acquired the note and mortgage prior toDOWD, J.UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF OHIOEASTERN DIVISIONDeutsche Bank National Trust Company, asTrustee of Argent Mortgage Securities, Inc.,Asset Backed Pass-Through Certificates,Series 2005-W5, Under the Pooling andServicing Agreement Dated as of November 1, 2005,Plaintiff(s),v.Gary Hutchinson, et al.,Defendant(s).))))))))))))))CASE NO. 1:07 CV 3108ORDERBy Order dated October 17, 2007, the Court directed plaintiff to show proof of standingas of the date of the complaint. On October 25, 2007, plaintiff filed its response (Doc. No. 5),which consisted of an assignment of the mortgage on October 11, 2007, and a brief arguing thatthis case should not be dismissed for lack of standing. The complaint was filedOctober 10, 2007.Plaintiff argues, citing Ohio law and one federal case which is not on point,
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that
Case 1:07-cv-03108-DDD Document 6 Filed 11/01/2007 Page 1 of 3
 
(1:07 CV 3108)the filing of the complaint.
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Plaintiff also asserts that the issue is not one of standing, as the Court had framed it.However, plaintiff cannot seriously be arguing that if it is not the real party in interest it wouldnonetheless have standing. See, e.g., State ex rel Jones v. Suster, 701 N.E.2d 1002, 1008 (Ohio1998) (“if a claim is asserted by one who is not the real party in interest, then the party lacksstanding to prosecute the action”).2“whether the plaintiff is the real party in interest is [an issue] of proof and not procedure.”Doc.No. 5, at 3, citing Washington Mutual Bank F.A. v. Green, 806 N.E.2d 604 (Ohio Ct. App.2004).
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The Court’s Order specifically requested proof from the plaintiff that they had standingto bring this action at the time the complaint was filed.The Court’s Order requesting proof of standing when the action was commenced isconsistent with the Fifth Amended General Order No. 2006-16 (Order) which governsprocedures for foreclosure actions based on diversity jurisdiction. The Order states that “[t]hecomplaint must be accompanied by the following: . . . 1.2.5. An affidavit documenting that thenamed plaintiff is the owner and holder of the note and mortgage, whether the originalmortgagee or by later assignment, successor in interest or as a trustee for another entity.” Orderat p. 2, (emphasis added). The fact that the Order allows plaintiff 30 days to provide thisinformation does not mean that the documents showing that plaintiff is the owner and holder of the note and mortgage do not need to establish that ownership at the time the complaint wasfiled. In this case, the plaintiff has not provided such documentary proof.This case is dealing with the potential loss of a homeowner’s property and is a veryserious matter. The Court cannot simply overlook the fact that the information provided to theCourt does not establish that plaintiff was the owner and holder of the note and mortgage at the
Case 1:07-cv-03108-DDD Document 6 Filed 11/01/2007 Page 2 of 3

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