You are on page 1of 3

Case 1:07-cv-03108-DDD Document 6 Filed 11/01/2007 Page 1 of 3




Deutsche Bank National Trust Company, as )

Trustee of Argent Mortgage Securities, Inc., ) CASE NO. 1:07 CV 3108
Asset Backed Pass-Through Certificates, )
Series 2005-W5, Under the Pooling and )
Servicing Agreement Dated as of ) ORDER
November 1, 2005, )
Plaintiff(s), )
v. )
Gary Hutchinson, et al., )
Defendant(s). )

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

October 10, 2007.

Plaintiff argues, citing Ohio law and one federal case which is not on point,1 that

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
Case 1:07-cv-03108-DDD Document 6 Filed 11/01/2007 Page 2 of 3

(1:07 CV 3108)

“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

to bring this action at the time the complaint was filed.

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

the filing of the complaint.

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 would
nonetheless have standing. See, e.g., State ex rel Jones v. Suster, 701 N.E.2d 1002, 1008 (Ohio
1998) (“if a claim is asserted by one who is not the real party in interest, then the party lacks
standing to prosecute the action”).

Case 1:07-cv-03108-DDD Document 6 Filed 11/01/2007 Page 3 of 3

(1:07 CV 3108)

time the complaint was filed.

Accordingly, any orders by the Court or entries by the Clerk are vacated, and the

above-captioned case is dismissed without prejudice. If documentary evidence is available to

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

reconsideration of this Order.


October 31, 2007 S/ David D. Dowd, Jr.

Date David D. Dowd, Jr.
U.S. District Judge