Sorry this is long, but I think it is important...
Deutsche Bank Foreclosures Tossed Out of Ohio Federal Court - "They Own Nothing!"
2007-11-12
by Moe Bedard and Aaron Krowne
Judge Christopher A. Boyko of the Eastern Ohio United States District Court, on October 31, 2007 dismissed 14 Deutsche Bank-filed foreclosures in a ruling based on lack of standing for not owning/holding the mortgage loan at the time the lawsuits were filed.
Judge Boyko issued an order requiring the Plaintiffs in a number of pending foreclosure cases to file a copy of the executed Assignment demonstrating Plaintiff (Deutsche Bank) was the holder and owner of the Note and Mortgage as of the date the Complaint was filed, or the court would enter a dismissal.
The Court's amended General Order No. 2006-16 requires Plaintiff (Deutsche Bank) to submit an affidavit along with the complaint, which identifies Plaintiff as the original mortgage holder, or as an assignee, trustee or successor-interest.
Apparently Deutsche bank submitted several affidavits that claim that Deutsche was in fact the owner of the mortgage note, but none of these affidavits mention assignment or trust or successor interest.
Thus, the Judge ruled that in every instance, these submissions create a "conflict" and they "do not satisfy" the burden of demonstrating at the time of filing the complaint, that Deutsche Bank was in fact the "legal" note holder.
While the decision is great for homeowners in distress (due to providing a new escape hatch out of foreclosure), it is a big blow to the cause of sorting out the high-finance side of the mortgage mess.
Jacksonville Area Legal Aid Attorney, April Charney, broke this news to us via email and made these comments in regards to the Ohio Federal Court ruling (emphasis ours):
This court order is what I have been saying in my cases. This is rampant fraud on every court in America or nonjudicial foreclosure fraud where the securitized trusts are filing foreclosures when they never own/hold the mortgage loan at the commencement of the foreclosure.
That means that the loans are clearly in default at the time of any eventual transfer of the ownership of the mortgage loans to the trusts. This means that the loans are being held by the originating lenders after the alleged "sale" to the trust despite what it says per the pooling and servicing agreements and despite what the securities laws require.
This also means that many securitized trusts don't really, legally own these bad loans.
In my cases, many of the trusts try to argue equitable assignment that predates the filing of the foreclosure, but a securitized trust cannot take an equitable assignment of a mortgage loan. It also means that the securitized trusts own nothing.
So with this decision, it appears confirmed that investors in the mortgage debacle may in fact own nothing---not even the bad loans they funded! It seems their right to the cash flow from the underlying properties does not extend to ownership of the properties themselves; thus clouding the recovery picture considerably.
Charney further remarked to us:
This opinion, once circulated and adopted by state and Federal courts across the country, will stop the progress of foreclosures, at first in judicial foreclosure states, across America, dead in their tracks.
We agree with additional remarks Charney made pointing out that this decision has major adverse implications for the prospects of an amicable financial workout for the various investor contingents in mortgage-backed securities (MBSes). Doubt is cast on where the full write-downs will eventually land, and this uncertainty can only be expected to further harm the market value of MBS and MBS-based synthetic securities, already in shambles purely due to rising underlying delinquencies. Investors in these securities might have assumed---wrongly, it turns out---that they actually owned some "real estate" in these deals.
To paraphrase Jim Cramer, "They own nothing!"
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It appears that Judge Christopher A. Boyko of the Eastern Ohio United States District Court is one of hopefully many federal and state judges who understand the basics of American Common Law.
Perhaps he even peruses this site and saw this very question of contract law; e.g. when individuals/entities enter into a contract, one of those entities cannot simply assign their interest in that contract to another party w/o the expressed written permission of the original contract signatory(ies).
It seems to me, this is how many Citizens in the USA in the 1990's voided their mortgages, etc. through a financial/legal action called a "Strawman Redemption". I never really understood nor accepted the legality of these SR's until recently.
Now that we have witnessed the illegal packaging and trading of primary mortgages/contracts by the banks and brokerages without the expressed written permission of the mortgage holder; I appreciate how some used 'strawman redemptions' to undo this non-judicial action.
Ergo, it appears original holders of 'sub-prime mortgages' can seek the protection of the federal district and perhaps state courts to maintain their interest in their home, which is threatened by the non-judicial, commercial actions of parasitical financial pirates.
It would also appear to me that if a home owner lives in a jurisdiction hostile to their interests they could protect their home with the so-called 'strawman redemption' or the plethora of common law tools which include:
Writs of Error
Writs of Prohibition
Writs of Mandamus
filed in both their state and a nearby federal district court.
Thereafter, American Citizens holding mortgages could be regarded by the courts as the 'senior trustee' of the property and protected from foreclosure and any other efforts to extort financial considerations.
Naturally, said trustees would be expected to pay a monthly fee to any parties authorized by the courts to receive a financial consideration. Which parties could include, charities, government taxing entities, financial institutions or individuals.
It would appear that this monthly fee must obviously be established by real market valuation of the home as opposed to financial spekilations.
Lady Pika, may I suggest that your legal experience armed with the above noted Common Law tools and tempered by a thorough understanding of Jude Boyko’s ruling via interviews with the Judge and the parties to this lawsuit, could do a world of good for your family, friends and neighbors facing these same financial parasites in Michigan state?http://iamfacingforeclosure.com/article/20071113_Boyko/01.html