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Vs MOTION TO DISMISS
, et al
Defendants
Comes the Defendant, by and through counsel, and respectfully move this Court to
dismiss the within counts on the ground that the Plaintiff is not the real party in interest and
______________________________
James V. Magee, Jr. (0006809).
Attorney at Law
36 East 7th Street, Suite 2020
Cincinnati, Ohio 45202
Phone: 513-621-9660
Fax: 513-345-3900
Email: jvmageejr@mageelaw.com
Attorney for Defendants Hunt
MEMORANDUM IN SUPPORT
The Note which is attached to the Complaint, references that the “Lender” (payee) is
Unison Financial Group, Inc. Pursuant to the allonge which is attached to the Note dated July 18,
2003, the Note was assigned to SIB Mortgage Corp. The mortgage which is attached to the
Complaint references that MERS is acting solely as a nominee for Lender, its successors and
assigns and is the mortgagee under the mortgage while Unison Financial Group, Inc. is the
“Lender”. The mortgage is recorded in the Office of the Hamilton County, Ohio Registered Land
Records. It has not been assigned of record; however attached to the Complaint as an unmarked
exhibit is an assignment from MERS, as nominee for Unison Financial Group, Inc. to Chase
Home Finance LLC, executed August 10, 2010. The Preliminary Judicial Complaint lists a
mortgage in favor MERS as nominee for Unison Financial Group, Inc. with no reference to an
In Count One of the Complaint at paragraph 9, Chase Home Finance LLC states it is due
a certain sum on the Note. At paragraph 10 of Count One, its states that Plaintiff (Chase Home
Finance, LLC) is entitled to enforce the Note pursuant to Section 1303.31 of the Ohio Revised
A review of the Ohio Secretary of State business filings evidences that on April 28, 2008
Unison Financial Group, LLC filed a Certificate of Dissolution thereby terminating operations as
an Ohio corporation. The question must then be asked who gave MERS the authority to assign
the mortgage in question, as nominee for a company that no longer existed, to the Plaintiff,
Chase Home Finance, LLC. An even more important question, which may need to be answered
by another tribunal, is how did the assignment become executed in Ohio when MERS offices are
in Reston, Virginia and why is it that the alleged Assistant Secretary of MERS is also an attorney
in the employ of the Plaintiff’s counsel and the acknowledgment was taken by an employee of
Plaintiff’s lawfirm?
In Ohio the holder of the note is also the owner and legally entitled person to exercise a
default under the mortgage. This in light of Ohio case law which holds that:
2
For nearly a century, Ohio courts have held that whenever a promissory
note is secured by a mortgage, the note constitutes the evidence of the
debt and the underlying mortgage is a mere incident to the obligation.
Therefore the negotiation of a note operates as an equitable assignment
of the mortgage, even though the mortgage is not assigned or delivered.1
The Note is endorsed from Unison Financial Group, Inc. to SIB Mortgage Corp., The
Plaintiff cannot claim that this Note is owned by it for unlike a blank endorsement which
becomes payable to bearer and may not be negotiated by transfer of possession alone until
specially endorsed, this Note is specially endorsed to SIB Mortgage Corp., not the Plaintiff.
Various sections of the Ohio’s Uniform Commercial Code also support the conclusion
that the owner of a promissory note should be recognized as the owner of the related mortgage.
A promissory note is usually a negotiable instrument, which provides the person entitled
to enforce the note the right to payment of the obligation it represents. 2 A person is entitled to
enforce a note when that person falls into one of three categories. 3 One such category is when the
person is a holder of the note. Generally, a person is a holder of the note by having physical
possession of the note, which has either been endorsed to that person or endorsed in blank. 4 A
note may be endorsed by an allonge, which is a paper “affixed to the instrument,” which then
Once a note is endorsed, its negotiation is complete upon transfer of possession.6 The
transfer of possession requires physical delivery of the note “for the purpose of giving the person
1
U.S. Bank National Association v. Marcino (2009), 181 Ohio App. 3d 328, 900 N.E. 2d 1032 citing Kuck v.
Sommers (1950) 50 Ohio Abs 400, 100 N.E.2d 68.
2
ORC. 1303.03, 1303.31
3
ORC 1301.31(A)
4
ORC 1303.22, Comment 1; Citizens Federal Savings & Loan Assn of Dayton v. Core Inc.,(1992) 78 Ohio App 3d
284, 287, 604 N.E. 2d 772, 774, dismissed 64 Ohio St. 3d 1410
5
ORC 1303.24(A)(2); Adams v Madison Realty dev. Inc (3d Cir 1988) 853 F2d 163, 167.
6
ORC 1303.24(A), 1303.21 (A)
3
receiving delivery the right to enforce the instrument.”7 However, possession alone does not
establish that the party in possession of the note is entitled to receive payments under it.8
Recently, many foreclosure firms have taken salvation in the Restatement (Third)
also provides:
Further, the Restatement (Third) of Property (Mortgages) §5.4 (a) and (c) provides as
follows:
There is no evidence before the court that the Note executed by the Defendants was
negotiated from Unison Financial Group, Inc.. to Chase Home Finance, LLC. It was assigned to
SIB Mortgage Corp. The Note is, therefore, still payable to SIB Mortgage Corp. The corollary is
that Chase Home Finance, LLC has not shown that it had an interest in the Note when it filed its
7
ORC 1303.22(A) and comment 1, 1301.01(N)
8
Citizens Fed Sav, supra @287.
4
The Court in Wells Fargo Bank, N.A. v Byrd,9 was faced with a similar situation. In this
case the First Appellate District of Ohio had a plaintiff, Wells Fargo, who was not a real party in
interest at the time it filed its foreclosure action. Wells Fargo claimed it was the owner and
holder of a note and mortgage but both the note and mortgage identified in the complaint named
WMC Mortgage Corp as the lender. It turned out WMC assigned the note and mortgage to
Wells Fargo after the complaint had been filed. The Court of Appeals acknowledged there was
little case-law guidance on the issue of whether Wells Fargo could have subsequently cured this
defect by producing an after-acquired interest in the litigation. It held “that the defect could not
In analyzing the Civil Rules, and particularly Civ. R. 17(A) which says
the Court drew upon two other Ohio Appellate Districts which had determined that the rule was
(1) not applicable unless the plaintiff had standing to invoke the jurisdiction of the Court in the
first place, either in an individual or representative capacity, with some real interest in the
subject matter10 and (2) that the real party in interest is generally considered to be the person who
can discharge the claim on which the suit is brought or is the party who, by substantive law,
9
(2008)178 Ohio App 3d 285, 2008-Ohio-4603
10
Northland Ins. Co. v. Illuminating Co 11th Dist. Nos 2002-A-0058 and 2002-A-0066, 2004-Ohio 1529
11
Discover Bank v. Brockmeier, 12 Dist No. CA2006-07-078, 2007-Ohio-1552
5
In light of the foregoing authorities, the Court of Appeals held that, in a foreclosure
action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by
In keeping with the statutes, decisions treatises discussed above, this Court must dismiss
the Complaint in the matter presently before it because the Plaintiff Chase Home Finance, LLC.
not being the holder of the Note and therefore authorized to bring an action on the mortgage,
Respectfully submitted,
_____________________________
James V. Magee, Jr. (0006809)
Attorney for Defendants Hunt
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the foregoing Motion, by ordinary US Mail,
postage prepaid, upon the following parties or counsel of record this __ th day of September,
2010:
_____________________________
James V. Magee, Jr.