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DOWD, J.
By Order dated October 17, 2007, the Court directed plaintiff to show proof of standing
as 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 that
this case should not be dismissed for lack of standing. The complaint was filed
Plaintiff argues, citing Ohio law and one federal case which is not on point,1 that
1
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, as
of 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 a
mortgage 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 had
purchased the note and mortgage from the original holder on November 14, 2001. The
foreclosure complaint was not filed until May 23, 2005. In this case, there is no information
before the Court that the plaintiff purchased or otherwise acquired the note and mortgage prior to
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“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).2 The Court’s Order specifically requested proof from the plaintiff that they had standing
The Court’s Order requesting proof of standing when the action was commenced is
consistent with the Fifth Amended General Order No. 2006-16 (Order) which governs
procedures for foreclosure actions based on diversity jurisdiction. The Order states that “[t]he
complaint must be accompanied by the following: . . . 1.2.5. An affidavit documenting that the
named plaintiff is the owner and holder of the note and mortgage, whether the original
mortgagee or by later assignment, successor in interest or as a trustee for another entity.” Order
at p. 2, (emphasis added). The fact that the Order allows plaintiff 30 days to provide this
information 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 was
filed. 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 very
serious matter. The Court cannot simply overlook the fact that the information provided to the
Court does not establish that plaintiff was the owner and holder of the note and mortgage at the
2
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Accordingly, any orders by the Court or entries by the Clerk are vacated, and the
establish that plaintiff is the owner and holder of the note and mortgage as of the date the
complaint was filed, the plaintiff may provide that information to the Court and seek
IT IS SO ORDERED.