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Federal Judge James S. GWIN, of the Northern District of Ohio (Eastern Division), has dismissed at least an additional eight (8) Ohio mortgage foreclosures due to the failure of the plaintiff to comply with Court Rules and to affirmatively demonstrate standing to litigate as of the inception of the litigation.  The dismissals of these cases are shown in the following opinions handed down over a three week period from November 20, 2007, through December 11, 2007, published on LEXIS-NEXIS:

  • LaSalle Bank v. Lyons, CASE NO. 1:07-CV-2733, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, 2007 U.S. Dist. LEXIS 90922, December 11, 2007, Decided, December 11, 2007, Filed.  [Judge James S. GWIN]
  • Deutsche Bank Nat'l Trust Co. v. Kelbacher, CASE NO. 1:07-CV-2401, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, 2007 U.S. Dist. LEXIS 94310, December 4, 2007, Decided, December 4, 2007, Filed.  [Judge James S. GWIN]
  • Deutsche Nat'l Bank Trust Co. v. Mays, CASE NO. 1:07-cv-02334, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, 2007 U.S. Dist. LEXIS 88683, December 3, 2007, Decided, December 3, 2007, Filed.  [Judge James S. GWIN]
  • Wells Fargo Bank, N.A. v. Ivy, CASE NO. 1:07-CV-2453, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, 2007 U.S. Dist. LEXIS 88679, December 3, 2007, Decided, December 3, 2007, Filed.  [Judge James S. GWIN]
  • Deutsche Nat'l Bank Trust Co. v. Nash, CASE NO. 1:07-cv-02994, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, 2007 U.S. Dist. LEXIS 88677, December 3, 2007, Decided, December 3, 2007, Filed.  [Judge James S. GWIN]
  • Deutsche Bank Nat'l Trust Co. v. Hanna, CASE NO. 1:07-CV-02513, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, 2007 U.S. Dist. LEXIS 91707, November 30, 2007, Decided, November 30, 2007, Filed.  [Judge James S. GWIN]
  • Deutsche Bank Nat'l Trust Co. v. Flachbart, CASE NO. 1:07-CV-2559, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, 2007 U.S. Dist. LEXIS 90458, November 29, 2007, Decided, November 29, 2007, Filed.  [Judge James S. GWIN]
  • Wells Fargo Bank, N.A. v. Abdulla, CASE NO. 1:07-CV-2176, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, 2007 U.S. Dist. LEXIS 89625, November 20, 2007, Decided, November 20, 2007, Filed.  [Judge James S. GWIN]

Judge GWIN's dismissals closely correspond to the previous decisions of Judges Christopher A. BOYKO, Thomas M. ROSE and Kathleen M. O'MALLEY.  Also noteworthy is that fact that only one of the defendants was represented by counsel and in each instance the Court acted sua sponte to DISMISS based upon the lack of standing readily apparent from the record.  In fact in six of teh eight instances, the Court acted sua sponte upon an UNOPPOSED motion for default or unopposed motion for order of sale.

I have copies of the final orders in each of these cases, which orders I obtained through the PACER service ( http://pacer.psc.uscourts.gov/ ).  I would be delighted to e-mail copies of these orders to anyone who desires to receive copies.

The primary significance of these orders is that they reflect the rulings of a fifth Federal Judge separate from Judges Christopher A. BOYKO, Thomas M. ROSE, Kathleen M. O'MALLEY and John D. HOLSCHUH, whose rulings relating to standing have already been noted within this Forum.  This reflects the widespread embrace of the BOYKO rationale throughout the Federal bench in Ohio.

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Another Foreclosure Dismissal By Judge GWIN on December 12, 2007
In previously reporting the disposition of Judge GWIN's cases, I failed to note this case, which has been published on LEXIS:

  • Deutsche Bank Nat'l Trust, Co. v. Key, CASE NO. 1:07-CV-02362, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, 2007 U.S. Dist. LEXIS 94975, December 12, 2007, Decided, December 12, 2007, Filed. 

I would be happy to furnish a copy of the dismissal order to anyone desiring a copy.
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Bill,
Hi,  First time I've had a chance to pop in here all week.  In your research have you encountered any such cases in South West Ohio (Butler Cty).
Thanks
Julie 
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Originally Posted By Julie
Bill,
Hi,  First time I've had a chance to pop in here all week.  In your research have you encountered any such cases in South West Ohio (Butler Cty).
Thanks
Julie 


Julie:

The short answer is NO and the somewhat longer answer is I don't know and finally, I would answer that there may NOT BE ANY.

As to the "No", I have NOT noticed any, but geographic locationis NOT rolled up automatically in the PACER Federal Court indices.  I have mostly been focusing on GEOGRAPHIC location, but rather on CASE DISPOSITION, trying to IDENTIFY the dismissals based upon standing.  And I have been GOING FAST.  I have looked at over 300 cases thus far.  I cannot therefore dwell very long on any one case.  I HAVE been tracking Judge (also NOT on the PACER summer index) and disposition.

So "No" I haven't notices and I don't know for sure.

But I think that it is UNLIKELY that there are very many of these cases.  I am totally shooting from the hip on this, but it is my IMPRESSION that the cases that landed in Federal Court were brought there when local dockets were found to be CONGESTED.  The plaintiffs were looking to SPEED THINGS UP. 

Generally speaking URBAN DOCKETS are often much more crowded.  Rural and suburban dockets are often lighter and cases may get heard more quickly.  But it really is NOT even that simple.  There is also the dynamic of population change.  Rapidly growing areas are likely to see caseloads increase faster than new judicial positions are created by the legislature and filled by whatever judicial selection process is used.  By contrast, an area where population DECLINES is actually UNLIKE to see judicial positions eliminated.

The bottom line is that in those places where case loads are increasing quickly, things are likely congested.  Where caseloads are DECLINING, cases move faster.  Foreclosure caseloads are generally increasing EVERYWHERE, but other litigation is up or down based upon other factors.

Where the TIME NECESSARY to get a case heard and decided was long, the plaintiffs decided to try Federal Court.  Where cases are heard quickly, they remain contented to stay in state court. 

I WILL try to be more conscious of geography as I look at additional cases.  But I think that I am likely to find that these Federal cases are geographically clustered.   
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Bankruptcy Judges Question Countrywide Errors, Evidence | ABA Journal - Law News Now
 
Bankruptcy Law

Bankruptcy Judges Question Countrywide Errors, Evidence

Posted Jan 14, 2008, 06:48 am CST
By
Debra Cassens Weiss

Bankruptcy judges are criticizing the business practices of Countrywide Financial, part of the legal headaches that Bank of America Corp. will be taking on when it acquires the troubled lender.

Improper charges and suspect evidence have gotten the attention of judges overseeing the bankruptcies of Countrywide borrowers. The company is also likely to face suits by subprime borrowers alleging they were misled about loan terms and by shareholders and investors claiming they weren’t fully informed about the financial condition of the company and its packaged mortgage loans, ABAJournal.com reported in an earlier post.

In Houston, Bankruptcy Judge Jeff Bohm is considering sanctions against Countrywide, the Wall Street Journal reports (sub. req.). He chastised company lawyers after discovering the lender charged unsubstantiated fees to a borrower and improperly credited his mortgage payments made in bankruptcy to prebankruptcy debt.

In Miami, Bankruptcy Judge A. Jay Cristol has authorized the subpoena requests of a trustee who wants to find out how Countrywide miscalculated the monthly payment owed by a borrower, doubling the amount from $2,400 to $4,800, the newspaper says. Countrywide was caught "with its hand in the cookie jar,” Cristol said.

A bankruptcy judge in Pittsburgh had similar criticism when he learned that Countrywide had “re-created” letters for a bankruptcy court that appeared to have never been sent, the New York Times reported earlier this month. The letters are “a smoking gun that something is not right in Denmark,” U.S. Bankruptcy Judge Thomas Agresti said at a December hearing.

While Bank of America may be facing big legal costs, it will be getting some help from the federal government in the form of an “awesome” tax break, according to the headline of a Fortune article that goes into the details.

Bank of America will be able to use Countrywide’s losses to offset its own taxable income. By one estimate, the company will be able to deduct $270 million a year for Countrywide losses the first five years after the acquisition, creating an annual tax savings of more than $100 million. Bigger deductions could follow, depending on the extent of Countrywide’s losses.

A hat tip to TaxProf Blog, which posted the Fortune story.

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http://www.abajournal.com/news/bankruptcy_judges_question_countrywide_errors_evidence/

Title: Bankruptcy Judges Question Countrywide Errors, Evidence

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Another Ohio Dismissal By Judge James S. GWIN with an Opinion Published on LEXIS

On February 6, 2008, Judge James S. GWIN dismissed another Northern Ohio Federal foreclosure case, the matter known as:
Novastar Mortg., Inc. v. Pearson, CASE NO. 1:07-cv-01143, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, 2008 U.S. Dist. LEXIS 8734, February 6, 2008, Decided, February 6, 2008, Filed.
This is but another variant on the theme established by Judges David DOWN, Christopher BOYKO, Kathleen O'MALLEY and Thomas ROSE.

In the Perason case, NovaStar brought suit on April 18, 2007, under a diversity of citizneship jurisdiction, citing its corporate residence as Kansas City, Missouri.  NavaStar Mortgage was also shown to be the original Lender, but the purported promissory note and mortgage showed NovaStar's address to be Independence, Ohio.  This mortgage also named MERS as the Lender's nominee and mortgagee.

NovaStar arranged for the creation of an assignment assigning the mortgage from MERS to NovaStar, but using the Kansas City, Missouri, address.  This assignment was recorded on April 27, 2007. 

When the Court questioned whether NovaStar was actually a foreign corporation with residence in Missouri, NovaStar failed to respond.

Basically, it seems that by the stroke of a pen, NovaStar removed itself from Ohio using the pretext of an MERS assignment and then used this assignment to justify diversity of citizenship!  CUTE!  NovaStar and its attorneys can do all sorts of magic tricks!   

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