Monday, February 23, 2009

It's Difficult to “Boyko” a Georgia Lender

As the foreclosure news pendulum shifts from lender to borrower, much has been written about the legal defense of, "Show me the Note."

Borrowers have hit upon the defense in foreclosure of: "Show me the Note," and "Show me the Assignment." If the lender cannot locate the original note or the original security deed (Deed of Trust in most states), the lender is in world of hurt. The foreclosing lender (many times a Servicer acting for the lender) must be able to show it has the legal authority to accelerate the debt on the borrower and seek to reclaim the real property. Until recently, borrower’s never challenged whether the lender actually had the "original" note and/or Security Deed (Deed of Trust).

After federal Judge Boyko's [1] Order dismissing more than 14 of DeustchBank's foreclosure actions in Cleveland, Ohio hit the Internet, the default legal world has been awash with Plaintiff demands for “the Original Promissory Notes,” the “original Security Deeds,” (Trust Deeds) and the filed assignments. [2] If these documents are not produced upon demand, lender cases may be lost.

As federal Judge Rose wrote in dismissing CitiBank, IndyBank and WellsFargo, "[S]ubject matter jurisdiction may not have existed at the time certain of the foreclosure complaints were filed [ * * * ] To show standing, then, in a foreclosure action, the plaintiff must show that it is the holder of the note and the mortgage at the time the complaint was filed. The foreclosure plaintiff must also show, at the time the foreclosure action is filed, that the holder of the note and mortgage is harmed, usually by not having received payments on the note. In re Foreclosure Cases, 521 F.Supp.2d 650 (S.D.Ohio 2007). [3]

These complaints do not work well in Georgia.

Why is that? You ask.

Because Georgia is a self-help or a non-judicial foreclosure state, the property is gone by the time the debtor realizes he or she has this potential defense to foreclosure. Since 100% of Deeds to Secure Debt allow the lender to declare default and proceed directly to the courthouse steps and sell the property, there is almost no legal juncture in the Georgia process where the debtor can raise this defense. Additionally, we know that this "defense," may not be raised in a post foreclosure confirmation action. BBC Land And Development, Inc. et al. v. Bank Of North Georgia, Georgia Court of Appeals, Case No. A08A1679 (November 20, 2008).

To raise this issue in Georgia foreclosure, a borrower must be proactive. Demanding the Note and assignment prior to foreclosure may stop the foreclosure. Or, potentially, a borrower can seek an OCGA § 9-11-65(b) Temporary Restraining Order (“TRO”) to stop a Georgia foreclosure. Foreclosure TRO’s are rarely granted and it’s somewhat like shooting at a bear. You better kill the bear with your one TRO bullet, or you will be the bear’s dinner (and, you will owe attorney’s fee to the lender for the missed shot).

If, however, a borrower is CERTAIN that the lender doe not possess the original note, security deed or a search of the public records reveals no filed assignment prior to the foreclosure, a defaulted borrower may bring a suit for “wrongful foreclosure,” after the fact. While this course of action is safer and less costly than a TRO, the property is gone during the life of the suit. That is, the borrower, generally, may not continue to live in the property during the life of the wrongful foreclosure suit.

Lenders know that its is costly and legally fatal to proceed with a foreclosure, if they do not possess the property original paperwork. Since servicers may have as many as four, five or six assignments before a foreclosure arrives in their default department, it is common that a servicer (acting for a lender) will not have the original paperwork at the outset of the default process.

A Borrower's demand is not a privilege, but a right. As Judge Rose indicated, lenders many not maintain their claims unless they have the “original.”

Hugh Wood
Atlanta, GA

Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30384
Fax 404-633-0068

& & &

[1] The F.Supp citation eludes me. However, I have reproduced the entire Boyko Order dismissing DeutschBank at the end of the endnotes.

Whether “Boyko” is a noun or a verb, I do not know. However, I do know that lenders are now aware of Federal Judge Christopher A. Boyko, Cleveland, OH.


Nos. 1:07CV2282, 07CV2532, 07CV2560, 07CV2602, 07CV2631, 07CV2638, 07CV2681, 07CV2695, 07CV2920, 07CV2930, 07CV2949, 07CV2950, 07CV3000, 07CV3029.
United States District Court Northern District, Ohio Eastern Division
October 31, 2007
CHRISTOPHER A. BOYKO, United States District Judge.
On October 10, 2007, this Court issued an Order requiring Plaintiff-Lenders in a number of pending foreclosure cases to file a copy of the executed Assignment demonstrating Plaintiff 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. After considering the submissions, along with all the documents filed of record, the Court dismisses the captioned cases without prejudice. The Court has reached today's determination after a thorough review of all the relevant law and the briefs and arguments recently presented by the parties, including oral arguments heard on Plaintiff Deutsche Bank's Motion for Reconsideration. The decision, therefore, is applicable from this date forward, and shall not have retroactive effect.
A party seeking to bring a case into federal court on grounds of diversity carries the burden of establishing diversity jurisdiction. Coyne v. American Tobacco Company, 183 F.3d 488 (6th Cir. 1999). Further, the plaintiff "bears the burden of demonstrating standing and must plead its components with specificity." Coyne, 183 F. 3d at 494; Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982). The minimum constitutional requirements for standing are: proof of injury in fact, causation, and redressability. Valley Forge, 454 U.S. at 472. In addition, "the plaintiff must be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted." Coyne, 183 F. 3d at 494 (quoting Pestrak v. Ohio Elections Comm'n, 926 F.2d 573, 576 (6th Cir. 1991)). To satisfy the requirements of Article III of the United States Constitution, the plaintiff must show he has personally suffered some actual injury as a result of the illegal conduct of the defendant. (Emphasis added). Coyne, 183 F. 3d at 494; Valley Forge, 454 U.S. at 472.
In each of the above-captioned Complaints, the named Plaintiff alleges it is the holder and owner of the Note and Mortgage. However, the attached Note and Mortgage identify the mortgagee and promisee as the original lending institution - one other than the named Plaintiff. Further, the Preliminary Judicial Report attached as an exhibit to the Complaint makes no reference to the named Plaintiff in the recorded chain of title/interest. The Court's Amended General Order No. 2006-16 requires Plaintiff to submit an affidavit along with the Complaint, which identifies Plaintiff either as the original mortgage holder, or as an assignee, trustee or successor-in-interest. Once again, the affidavits submitted in all these cases recite the averment that Plaintiff is the owner of the Note and Mortgage, without any mention of an assignment or trust or successor interest. Consequently, the very filings and submissions of the Plaintiff create a conflict. In every instance, then, Plaintiff has not satisfied its burden of demonstrating standing at the time of the filing of the Complaint.
Understandably, the Court requested clarification by requiring each Plaintiff to submit a copy of the Assignment of the Note and Mortgage, executed as of the date of the Foreclosure Complaint. In the above-captioned cases, none of the Assignments show the named Plaintiff to be the owner of the rights, title and interest under the Mortgage at issue as of the date of the Foreclosure Complaint. The Assignments, in every instance, express a present intent to convey all rights, title and interest in the Mortgage and the accompanying Note to the Plaintiff named in the caption of the Foreclosure Complaint upon receipt of sufficient consideration on the date the Assignment was signed and notarized. Further, the Assignment documents are all prepared by counsel for the named Plaintiffs. These proffered documents belie Plaintiffs' assertion they own the Note and Mortgage by means of a purchase which pre-dated the Complaint by days, months or years.
Plaintiff-Lenders shall take note, furthermore, that prior to the issuance of its October 10, 2007 Order, the Court considered the principles of "real party in interest," and examined Fed. R. Civ. P. 17 - "Parties Plaintiff and Defendant; Capacity" and its associated Commentary. The Rule is not apropos to the situation raised by these Foreclosure Complaints. The Rule's Commentary offers this explanation: "The provision should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. ... It is, in cases of this sort, intended to insure against forfeiture and injustice ..." Plaintiff-Lenders do not allege mistake or that a party cannot be identified. Nor will Plaintiff-Lenders suffer forfeiture or injustice by the dismissal of these defective complaints otherwise than on the merits.
Moreover, this Court is obligated to carefully scrutinize all filings and pleadings in foreclosure actions, since the unique nature of real property requires contracts and transactions concerning real property to be in writing. R.C. § 1335.04. Ohio law holds that when a mortgage is assigned, moreover, the assignment is subject to the recording requirements of R.C. § 5301.25. Creager v. Anderson (1934), 16 Ohio Law Abs. 400 (interpreting the former statute, G.C. § 8543). "Thus, with regards to real property, before an entity assigned an interest in that property would be entitled to receive a distribution from the sale of the property, their interest therein must have been recorded in accordance with Ohio law." In re Ochmanek, 266 B.R. 114, 120 (Bkrtcy.N.D. Ohio 2000) (citing Pinney v. Merchants' National Bank of Defiance, 71 Ohio St. 173, 177 (1904).[1]
This Court acknowledges the right of banks, holding valid mortgages, to receive timely payments. And, if they do not receive timely payments, banks have the right to properly file actions on the defaulted notes - seeking foreclosure on the property securing the notes. Yet, this Court possesses the independent obligations to preserve the judicial integrity of the federal court and to jealously guard federal jurisdiction. Neither the fluidity of the secondary mortgage market, nor monetary or economic considerations of the parties, nor the convenience of the litigants supersede those obligations.
Despite Plaintiffs' counsel's belief that "there appears to be some level of disagreement and/or misunderstanding amongst professionals, borrowers, attorneys and members of the judiciary," the Court does not require instruction and is not operating under any misapprehension. The "real party in interest" rule, to which the Plaintiff-Lenders continually refer in their responses or motions, is clearly comprehended by the Court and is not intended to assist banks in avoiding traditional federal diversity requirements.[2] Unlike Ohio State law and procedure, as Plaintiffs perceive it, the federal judicial system need not, and will not, be "forgiving in this regard."[3]
For all the foregoing reasons, the above-captioned Foreclosure Complaints are dismissed without prejudice.
[1] Astoundingly, counsel at oral argument stated that his client, the purchaser from the original mortgagee, acquired complete legal and equitable interest in land when money changed hands, even before the purchase agreement, let alone a proper assignment, made its way into his client's possession.
[2] Plaintiff's reliance on Ohio's "real party in interest rule" (ORCP 17) and on any Ohio case citations is misplaced. Although Ohio law guides federal courts on substantive issues, state procedural law cannot be used to explain, modify or contradict a federal rule of procedure, which purpose is clearly spelled out in the Commentary. "In federal diversity actions, state law governs substantive issues and federal law governs procedural issues." Erie R.R. Co. v. Tompkins, 304 U.S. 63 (1938); Legg v. Chopra, 286 F.3d 286, 289 (6th Cir. 2002); Gafford v. General Electric Company, 997 F.2d 150, 165-6 (6th Cir. 1993).
[3] Plaintiff's, "Judge, you just don't understand how things work," argument reveals a condescending mindset and quasi-monopolistic system where financial institutions have traditionally controlled, and still control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits, fails to make the required mortgage payments and faces a foreclosure suit, is not interested in testing state or federal jurisdictional requirements, either pro se or through counsel. Their focus is either, "how do I save my home," or "if I have to give it up, I'll simply leave and find somewhere else to live."
In the meantime, the financial institutions or successors/assignees rush to foreclose, obtain a default judgment and then sit on the deed, avoiding responsibility for maintaining the property while reaping the financial benefits of interest running on a judgment. The financial institutions know the law charges the one with title (still the homeowner) with maintaining the property.
There is no doubt every decision made by a financial institution in the foreclosure process is driven by money. And the legal work which flows from winning the financial institution's favor is highly lucrative. There is nothing improper or wrong with financial institutions or law firms making a profit - to the contrary, they should be rewarded for sound business and legal practices. However, unchallenged by underfinanced opponents, the institutions worry less about jurisdictional requirements and more about maximizing returns. Unlike the focus of financial institutions, the federal courts must act as gatekeepers, assuring that only those who meet diversity and standing requirements are allowed to pass through. Counsel for the institutions are not without legal argument to support their position, but their arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate.
The Court will illustrate in simple terms its decision: "Fluidity of the market" - "X" dollars, "contractual arrangements between institutions and counsel" - "X" dollars, "purchasing mortgages in bulk and securitizing" - "X" dollars, "rush to file, slow to record after judgment" - "X" dollars, "the jurisdictional integrity of United States District Court" - "Priceless."

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521 F.Supp.2d 650 (S.D.Ohio 2007)
Nos. 3:07CV043, 07CV049, 07CV085, 07CV138, 07CV237, 07CV240, 07CV246, 07CV248, 07CV257, 07CV286, 07CV304, 07CV312, 07CV317, 07CV343, 07CV353, 07CV360, 07CV386, 07CV389, 07CV390, 07CV433.
United States District Court, S.D. Ohio, Western Division
Nov. 15, 2007.
Page 651
[Copyrighted Material Omitted]
Page 652
Kevin L. Williams, Manley Deas Kochalski LLC, Columbus, OH, Timothy R. Billick, Metropolitan Savings Bank of Cleveland, Hudson, OH, for Citibank, N.A., HSBC Mortgage Services, Inc., Household Realty Corp., Indymac Bank, F.S.B., Deutsche Bank Trust Company Americas Formerly Known as Agent of Banker's Trust Company, Wells Fargo Bank, NA, LaSalle Bank National Association, Saxon Mortgage Service, Inc.
Colette S. Carr, Montgomery County Prosecuting Attorney's Office, Dayton, OH, for Montgomery County Treasurer.
Deborah F. Perkins, Miamisburg, OH, Pro se.
Betty A. Lowry, Brookeville, OH, Pro se.
Lucas Chambers Ward, Columbus, OH, for State of Ohio Department of Taxation.
Scott D. Schockling, Champaign County Prosecutor's Office, Urbana, OH, for Champaign County Treasurer.
Dennis Edward Stegner, Allen M. Lehmkuhl Co., L.P.A., Springfield, OH, for Douglas M. Morris.
Michael Edmond Foley, Greene County Prosecutors Office, Xenia, OH, for Greene County Treasurer.
THOMAS M. ROSE, District Judge.
The first private foreclosure action based upon federal diversity jurisdiction was filed in this Court on February 9, 2007. Since then, twenty-six (26) additional complaints for foreclosure based upon federal diversity jurisdiction have been filed.
While each of the complaints for foreclosure pleads standing and jurisdiction, evidence submitted either with the complaint or later in the case indicates that standing and/or subject matter jurisdiction may not have existed at the time certain of the foreclosure complaints were filed. Further, only one of these foreclosure complaints thus far was filed in compliance with this Court's General Order 07-03 captioned "Procedures for Foreclosure Actions Based On Diversity Jurisdiction."
Page 653
Federal courts have only the power authorized by Article III of the United States Constitution and the statutes enacted by Congress pursuant thereto. Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). As a result, a plaintiff must have constitutional standing in order for a federal court to have jurisdiction. Id.
Plaintiffs have the burden of establishing standing. Loren v. Blue Cross & Blue Shield of Michigan, 505 F.3d 598, 606-07 (6th Cir.2007). If they cannot do so, their claims must be dismissed for lack of subject matter jurisdiction. Id. (citing Central States Southeast & Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, 433 F.3d 181, 199 (2d Cir.2005)).
Because standing involves the federal court's subject matter jurisdiction, it can be raised sua sponte. Id. (citing Central States, 433 F.3d at 198). Further, standing is determined as of the time the complaint is filed. Cleveland Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 524 (6th Cir.2001), cert. denied, 535 U.S. 971, 122 S.Ct. 1438, 152 L.Ed.2d 382 (2002). Finally, while a determination of standing is generally based upon allegations in the complaint, when standing is questioned, courts may consider evidence thereof. See NAACP, 263 F.3d at 523-30; Senter v. General Motors, 532 F.2d 511 (6th Cir.1976), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976).
To satisfy Article III's standing requirements, a plaintiff must show: (1) it has suffered an injury in fact that is concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Loren, at 606-07.
To show standing, then, in a foreclosure action, the plaintiff must show that it is the holder of the note and the mortgage at the time the complaint was filed. The foreclosure plaintiff must also show, at the time the foreclosure action is filed, that the holder of the note and mortgage is harmed, usually by not having received payments on the note.
Diversity Jurisdiction
In addition to standing, a court may address the issue of subject matter jurisdiction at any time, with or without the issue being raised by a party to the action. Community Health Plan of Ohio v. Mosser, 347 F.3d 619, 622 (6th Cir.2003). Further, as with standing, the plaintiff must show that the federal court has subject matter jurisdiction over the foreclosure action at the time the foreclosure action was filed. Coyne v. American Tobacco Company, 183 F.3d 488, 492-93 (6th Cir.1999). Also as with standing, a federal court is required to assure itself that it has subject matter jurisdiction and the burden is on the plaintiff to show that subject matter jurisdiction existed at the time the complaint was filed. Id. Finally, if subject matter jurisdiction is questioned by the court, the plaintiff cannot rely solely upon the allegations in the complaint and must bring forward relevant, adequate proof that establishes subject matter jurisdiction. Nelson Construction Co. v. U.S., 79 Fed.Cl. 81, 84-85 (Fed.Cl.2007) (citing McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)); see also Nichols v. Muskingum College, 318 F.3d 674, (6th Cir.2003) ("in reviewing a 12(b)(1) motion, the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction ...").
Page 654
The foreclosure actions are brought to federal court based upon the federal court having jurisdiction pursuant to 28 U.S.C. § 1332, termed diversity jurisdiction. To invoke diversity jurisdiction, the plaintiff must show that there is complete diversity of citizenship of the parties and that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332.
While the plaintiffs in each of the above-captioned cases have pled that they have standing and that this Court has subject matter jurisdiction, they have submitted evidence that indicates that they may not have had standing at the time the foreclosure complaint was filed and that subject matter jurisdiction may not have existed when the foreclosure complaint was filed. Further, this Court has the responsibility to assure itself that the foreclosure plaintiffs have standing and that subject-matter-jurisdiction requirements are met at the time the complaint is filed. Even without the concerns raised by the documents the plaintiffs have filed, there is reason to question the existence of standing and the jurisdictional amount. See Katherine M. Porter, Misbehavior and Mistake in Bankruptcy Mortgage Claims 3-4 (November 6, 2007), University of Iowa College of Law Legal Studies Research Paper Series Available at SSRN: ("[H]ome mortgage lenders often disobey the law and overreach in calculating the mortgage obligations of consumers.... Many of the overcharges and unreliable calculations ... raise the specter of poor recordkeeping, failure to comply with consumer protection laws, and massive, consistent overcharging.")
Therefore, plaintiffs are given until not later than thirty days following entry of this order to submit evidence showing that they had standing in the above-captioned cases when the complaint was filed and that this Court had diversity jurisdiction when the complaint was filed. Failure to do so will result in dismissal without prejudice to refiling if and when the plaintiff acquires standing and the diversity jurisdiction requirements are met. See In re Foreclosure Cases, No. 1:07CV2282, et al., 2007 WL 3232430 (N.D.Ohio Oct. 31, 2007) (Boyko, J.)
Federal Rule of Civil Procedure 83(a)(2) provides that a "local rule imposing a requirement of form shall not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply with the requirement." Fed.R.Civ.P. 83(a)(2). The Court recognizes that a local rule concerning what documents are to be filed with a certain type of complaint is a rule of form. Hicks v. Miller Brewing Company, 2002 WL 663703 (5th Cir.2002). However, a party may be denied rights as a sanction if failure to comply with such a local rule is willful. Id.
General Order 07-03 provides procedures for foreclosure actions that are based upon diversity jurisdiction. Included in this General Order is a list of items that must accompany the Complaint. [1] Among the items listed are: a Preliminary Judicial Report; a written payment history verified by the plaintiff's affidavit that the amount in controversy exceeds $75,000; a legible copy of the promissory note and any loan modifications, a recorded
Page 655
copy of the mortgage; any applicable assignments of the mortgage, an affidavit documenting that the named plaintiff is the owner and holder of the note and mortgage; and a corporate disclosure statement. In general, it is from these items and the foreclosure complaint that the Court can confirm standing and the existence of diversity jurisdiction at the time the foreclosure complaint is filed.
To date, twenty-six (26) of the twenty-seven (27) foreclosure actions based upon diversity jurisdiction pending before this Court were filed by the same attorney. One of the twenty-six (26) foreclosure actions was filed in compliance with General Order 07-03. The remainder were not. [2] Also, many of these foreclosure complaints are notated on the docket to indicate that they are not in compliance. Finally, the attorney who has filed the twenty-six (26) foreclosure complaints has informed the Court on the record that he knows and can comply with the filing requirements found in General Order 07-03.
Therefore, since the attorney who has filed twenty-six (26) of the twenty-seven (27) foreclosure actions based upon diversity jurisdiction that are currently before this Court is well aware of the requirements of General Order 07-03 and can comply with the General Order's filing requirements, failure in the future by this attorney to comply with the filing requirements of General Order 07-03 may only be considered to be willful. Also, due to the extensive discussions and argument that has taken place, failure to comply with the requirements of the General Order beyond the filing requirements by this attorney may also be considered to be willful.
A willful failure to comply with General Order 07-03 in the future by the attorney who filed the twenty-six foreclosure actions now pending may result in immediate dismissal of the foreclosure action. Further, the attorney who filed the twenty-seventh foreclosure action is hereby put on notice that failure to comply with General Order 07-03 in the future may result in immediate dismissal of the foreclosure action.
This Court is well aware that entities who hold valid notes are entitled to receive timely payments in accordance with the notes. And, if they do not receive timely payments, the entities have the right to seek foreclosure on the accompanying mortgages. However, with regard the enforcement of standing and other jurisdictional requirements pertaining to foreclosure actions, this Court is in full agreement with Judge Christopher A Boyko of the United States District Court for the Northern District of Ohio who recently stressed that the judicial integrity of the United States District Court is "Priceless."
[1] The Court views the statement "the complaint must be accompanied by the following" to mean that the items listed must be filed with the complaint and not at some time later that is more convenient for the plaintiff.
[2] The Sixth Circuit may look to an attorney's actions in other cases to determine the extent of his or her good faith in a particular action. See Capitol Indemnity Corp. v. Jellinick, 75 Fed.Appx. 999, 1002 (6th Cir.2003). Further, the law holds a plaintiff "accountable for the acts and omissions of [its] chosen counsel." Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 397, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).

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Anonymous said...

As a does one look up the public records in georgia in regards to the note...many states like FL allow you to see the information...

Hugh Wood said...

Generally Notes are not of record. Security Deeds are of record, but not the Notes. There are expections. If you are the borrower you have a copy and/or you can request another copy.

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