Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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Largely unnoticed amidst the flourish of attention given Judge Christopher BOYKO's bulk dismissal of fourteen cases on October 31, 2007, were at least two similar, but very brief one page dismissal orders issued that same day by Federal Judge David D. DOWD, Jr., of the Northern District of Ohio (Eastern Division).  These cases were:

  • LaSalle Bank National Association v. Tapolcsany; Filed 9/28/2007; Case No. 5:2007cv02980
  • LaSalle Bank, N.A. v. Fordyce et al; Filed 9/7/2007; Case No. 5:2007cv02724
The orders are short and sweet.  SO short that I am posting the full text of each here:

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LaSalle Bank National Association as Trustee

for Certificateholders of Bear Stearns Asset

Backed Securities, Series 2005-HE3,

Plaintiff(s),

v.

Illes Tapolcsanyi, et al.,

Defendant(s).

))))))))))

CASE NO. 5:07 CV 2980

O R D E R

By Order dated October 17, 2007, the Court required plaintiff to provide proof of standing

to bring this action as of the date the complaint was filed. Plaintiff responded by filing an

assignment of mortgage on October 22, 2007, showing that an assignment occurred on

October 1, 2007 (Document 9).

A review of the record reveals that plaintiff lacked standing to bring this diversity

foreclosure action. The complaint was filed on September 28, 2007. However, the assignment

occurred on October 1, 2007, that is, after the date the lawsuit was commenced.

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

above-captioned case is dismissed without prejudice.

IT IS SO ORDERED.

October 31, 2007

Date

/s/ David D. Dowd, Jr.

David D. Dowd, Jr.

U.S. District Judge


*

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LaSalle Bank, N.A.,

Plaintiff(s),

v.

Gary B. Fordyce, Jr., et al.,

Defendant(s).

))))))))))

CASE NO. 5:07 CV 2724

O R D E R

A review of the record in the above-captioned case reveals that plaintiff lacked standing

to bring this diversity foreclosure action. The complaint was filed on September 7, 2007.

However, a copy of the assignment of the mortgage filed on October 22, 2007 (Doc. No. 14)

shows that the assignment occurred on October 1, 2007, that is, after the date the lawsuit was

commenced.

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

above-captioned case is dismissed without prejudice.

IT IS SO ORDERED.

October 31, 2007

Date

/s/ David D. Dowd, Jr.

David D. Dowd, Jr.

U.S. District Judge


*

I would be delighted to share copies of the images of these orders in these cases with anyone desiring to have them. 

*

Lest there be any doubt about what Judge DOWD thinks about the standing matter, look again at the quote attributed to Judge DOWD in Business Week:

Foreclosure is turning out to be trickier than many on Wall Street anticipated. Observes David D. Dowd Jr., a federal judge in Akron who joined colleagues in trying to streamline the process for handling foreclosures when the housing bust hit: "I think they liked the procedure we set up--until we started asking nasty questions about whether they actually own the note."

See "Foreclosures: Not So Fast: Court rulings may make it tougher for holders of mortgage-backed securities to take back the keys", by Michael Orey - Business Week, November 29, 2007.  [Text posted by Blossom at 01:36 PM 12/30/2007 in the discussion thread "Federal Judge John D. HOLSCHUH Dismisses an Additional Fourteen Ohio Mortgage Foreclosures"]

*

The primary significance of these cases is that they demonstrate that Judge DOWD is fully ON BOARD with the Federal bench's adherence to Constitutional Article III standing requirements as enunciated in BOYKO, O'MALLEY and ROSE. 
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Judge David D. DOWD, Jr., is a senior judge who was nominated, confirmed and seated on the Federal bench in 1982.  He was appointed by President Ronald Reagan.  Judge DOWD assumed senior status on June 30, 1996. 

For additional biographical information regarding Judge DOWD, please see the Federal Judicial Center's Biographical Directory of Federal Judges (at http://www.fjc.gov/public/home.nsf/hisj) or more specifically the entry for David Dudley DOWD, Jr.  at http://www.fjc.gov/servlet/tGetInfo?jid=642.

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Seven Additional Dismissals For Lack of Standing By Judge DOWD on December 11, 2007

Judge David D. DOWD, Jr., dismissed as additional SEVEN (7) Ohio foreclosure cases on December 11, 2007, for failure to show standing.  These cases were:  
  • DLJ Mortgage Capital, Inc. v. Harper; Filed 10/5/2007; Case No. 1:2007cv03052
  • Deutsche Bank National Trust Company v. Black; Filed 10/8/2007; Case No. 1:2007cv03074
  • Wells Fargo Bank, N.A. v. Banfield; Filed 7/26/2007; Case No. 5:2007cv02272
  • Deutsche Bank National Trust Company v. Squires; Filed 10/8/2007; Case No. 5:2007cv03076
  • MidFirst Bank v. Deem; Filed 10/22/2007; Case No. 5:2007cv03260
  • CitiMortgage, Inc. v. Stout; Filed 10/23/2007; Case No. 5:2007cv03280
  • CitiMortgage, Inc. v. North; Filed 10/30/2007; Case No. 5:2007cv03376
All of these EXCEPT the CitiMortgage, Inc. v. Stout case were PRECEDED by a show cause order directing that the plaintiff furnish proof of ownership of the mortgage and requisite standing.  The show cause order was issued in each instance on October 17, 2007, EXCEPT for the MidFirst Bank v. Deem case where the show cause order was dated October 31, 2007.  In CitiMortgage, Inc. v. Stout the assignment filed with the court showed that the plaintiff obtained an interest in the subject mortgage after (October 25, 2007) the institution of the suit.

In addition to these seven dismissals, Judge DOWD granted dismissal orders in at least two other cases during December:
  • Deutsche Bank National Trust Company v. Marshall; Filed 8/23/2007; Case No. 4:2007cv02572 [12 Dec 2007]
  • Deutsche Bank Trust Company Americas v. Hinrich; Filed 11/7/2007; Case No. 4:2007cv03477 [17 Dec 2007]
In Deutsche Bank National Trust Company v. Marshall, the plaintiff took a voluntary dismissal pursuant to Rule 41(a)(2) after a show cause order dated October 17, 2007, directed the plaintiff to furnish proof of standing.

I have copies of the dismissal orders which I would be delighted to share with anyone desiring to see them.
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A Well Written Brief On Standing

Within the Order of Dismissal dated 03 Dec 2007 and shown with the docket records as filed on 04 Dec 2007, Judge David D. DOWD singles out the defendant's brief on standing in the case of Deutsche Bank National Trust Company v. Awad (Filed 9/6/2007; Case No. 5:2007cv01703) as particularly meritworthy.  Judge DOWD uses these words in his dismissal order:

"For the reasons set forth in the well-written brief of Awad, this case is dismissed without prejudice for lack of standing. [1]

Footnote
[1] The Court is aware that it has not waited for any response from the plaintiff. However, waiting would be futile, given the several failed opportunities that plaintiff has already been given to prove standing."

The defendant's brief was signed by Attorney Brian A. Murray, of Zukerman, Daiker & Lear.  His contact information is:

Brian A. Murray
Zukerman, Daiker & Lear
3912 Prospect Avenue
Cleveland, OH 44115
216-696-0900
216-696-8800 (fax)
bmurray@duiohio.com

I have a copy of the dismissal order and of this defendant's brief and would be delighted to share it with anyone who desires a copy.  Hopefully, the MS Fraud webmaster will also post a copy of the brief at the Legal Lounge.
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Another STRONG Unpublished Opinion Regarding Plaintiff's Standing
Judge David D. DOWD, Jr. wrote another very strong opinion regarding standing in his dismissal order of October 31, 2007, in the cse of Deutsche Bank National Trust Company v. McCarthy [Filed 10/8/2007; Case No. 1:2007cv03071].  In that opinion, Judge DOWD disposes of the plaintiff's weak arguments and purported authorities and goes on to excorciate the plaintiff for FALSELY AVERRING by sworn affidavit ownership of the mortgage in question, saying in part:

"The Northern District of Ohio is swamped with foreclosure cases brought in diversity.  A large number of these cases are brought by plaintiffs who declare that they are holders of the note and mortgage but who initially supply no proof of that fact.  When pressed, it is typically the case, as here, that the plaintiff actually is not the holder of the note and mortgage until some time after the filing of the complaint (often mere days!) and had, therefore, made a false statement to the court.  Sometimes that statement of ownership is only in the complaint; sometimes, as in the instant case, it is actually in a sworn affidavit.  [emphasis added]  See Doc. No. 1-4, ¶ 7.  This is completely unacceptable, especially because this situation is likely to be repeated if not stopped by Court order."
Within Footnote 2, Judge DOWD points out:
[2]  Plaintiff also asserts that the issue is not one of standing, as the Court had framed it. However, plaintiff cannot seriously believe 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”).
The Ohio Supreme Court case cited by Judge DOWD is more particularly:

State ex rel. Jones v. Suster, No. 97-1231 , SUPREME COURT OF OHIO, 84 Ohio St. 3d 70; 1998 Ohio 275; 701 N.E.2d 1002; 1998 Ohio LEXIS 3221, January 13, 1998, Submitted , December 2, 1998, Decided.

I have copies of Judge DOWD's final order of dismissal of the McCarthy case (October 30, 2007), as well as his earlier show cause order (October 17, 2007).  I would be delighted to e-mail copies to anyone desiring to read or have this unpublished opinion.  This is another order that possibly belongs in the MS Fraud Legal Lounge.

It is noteworthy that this written order by Judge DOWD preceeded by one day the much better publicized bulk dismissal orde by Judge Christopher A. BOYKO and clearly reflects the fact that Judge DOWD was at the cutting edge of dismissing Ohio foreclosure cases due to lack of plaintiff standing!  
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Wow, I am stunned.

Lying to the court and have them find out about it is going to tarnish their
credibility in future cases.

Why would they do that?  Because they have been getting away with it for years? 

It is a simple request to provide proof the plaintiff has standing to file for foreclosure should be remedied in a  heart beat and refiled properly since the dismissals were without prejudice. 

That is true if these cases are on the up and up.

I wonder if plaintiff's are chewing this one around with each other?  They
will need to be careful not to anger these judges and finding themselves
responsible for precedent decisions against them and for everybody else
filing foreclosure cases in the future.

How often do Federal Court Judges get their decisions overturned?  It is not a cake walk.

If you have a lawyer, make sure he/she gets this information.

This is good information to add to your folder of pertinent cases.

You've been provided a copy of the Judge's actual written dismissal.
Your lawyer can use it to write the petition and order for the judge to sign.

Who knows?  Maybe this is a strike one against the foreclosure specialists.

Dear God.  What is next?  Judges may require proof that the borrower
is indeed in default of their own making before allowing the foreclosure to take place?  These entities that manufacture default status by lying in their
documents might end up with a judge requesting their process to become open to scrutiny rather than the rubber stamp.

Dee
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O -

Thanks for taking the time to check this out  Any Updates?

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It takes quite a bit of time to work through the various cases.  I have been sidetracked a bit for the last day or two.  Hopefully, I will be able to scrutinize a couple of dozen more cases this evening.  I still have quite a few cases to examine from October and November.  I will also try to take a look at the NEW rulings at least weekly over the next several weeks.

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William A. Roper, Jr. wrote:
Largely unnoticed amidst the flourish of attention given Judge Christopher BOYKO's bulk dismissal of fourteen cases on October 31, 2007, were at least two similar, but very brief one page dismissal orders issued that same day by Federal Judge David D. DOWD, Jr., of the Northern District of Ohio (Eastern Division).  These cases were:

  • LaSalle Bank National Association v. Tapolcsany; Filed 9/28/2007; Case No. 5:2007cv02980
  • LaSalle Bank, N.A. v. Fordyce et al; Filed 9/7/2007; Case No. 5:2007cv02724
The orders are short and sweet.  SO short that I am posting the full text of each here:

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LaSalle Bank National Association as Trustee

for Certificateholders of Bear Stearns Asset

Backed Securities, Series 2005-HE3,

Plaintiff(s),

v.

Illes Tapolcsanyi, et al.,

Defendant(s).

))))))))))

CASE NO. 5:07 CV 2980

O R D E R

By Order dated October 17, 2007, the Court required plaintiff to provide proof of standing

to bring this action as of the date the complaint was filed. Plaintiff responded by filing an

assignment of mortgage on October 22, 2007, showing that an assignment occurred on

October 1, 2007 (Document 9).

A review of the record reveals that plaintiff lacked standing to bring this diversity

foreclosure action. The complaint was filed on September 28, 2007. However, the assignment

occurred on October 1, 2007, that is, after the date the lawsuit was commenced.

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

above-captioned case is dismissed without prejudice.

IT IS SO ORDERED.

October 31, 2007

Date

/s/ David D. Dowd, Jr.

David D. Dowd, Jr.

U.S. District Judge


*

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LaSalle Bank, N.A.,

Plaintiff(s),

v.

Gary B. Fordyce, Jr., et al.,

Defendant(s).

))))))))))

CASE NO. 5:07 CV 2724

O R D E R

A review of the record in the above-captioned case reveals that plaintiff lacked standing

to bring this diversity foreclosure action. The complaint was filed on September 7, 2007.

However, a copy of the assignment of the mortgage filed on October 22, 2007 (Doc. No. 14)

shows that the assignment occurred on October 1, 2007, that is, after the date the lawsuit was

commenced.

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

above-captioned case is dismissed without prejudice.

IT IS SO ORDERED.

October 31, 2007

Date

/s/ David D. Dowd, Jr.

David D. Dowd, Jr.

U.S. District Judge


*

I would be delighted to share copies of the images of these orders in these cases with anyone desiring to have them. 

*

Lest there be any doubt about what Judge DOWD thinks about the standing matter, look again at the quote attributed to Judge DOWD in Business Week:

Foreclosure is turning out to be trickier than many on Wall Street anticipated. Observes David D. Dowd Jr., a federal judge in Akron who joined colleagues in trying to streamline the process for handling foreclosures when the housing bust hit: "I think they liked the procedure we set up--until we started asking nasty questions about whether they actually own the note."

See "Foreclosures: Not So Fast: Court rulings may make it tougher for holders of mortgage-backed securities to take back the keys", by Michael Orey - Business Week, November 29, 2007.  [Text posted by Blossom at 01:36 PM 12/30/2007 in the discussion thread "Federal Judge John D. HOLSCHUH Dismisses an Additional Fourteen Ohio Mortgage Foreclosures"]

*

The primary significance of these cases is that they demonstrate that Judge DOWD is fully ON BOARD with the Federal bench's adherence to Constitutional Article III standing requirements as enunciated in BOYKO, O'MALLEY and ROSE. 
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That's exactly what the greedy dirty rat bastards in the mortgage industry deserve! 

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