On December 27, 2007,Federal Judge John D. HOLSCHUH, of the Southern District of Ohio (Eastern DIvision) Dismissed an Additional Fourteen Mortgage Foreclosures due to the plaintiff's failure to demonstrate requisite standing to bring the action in Federal COurt. Judge HOLSCHUH's action followed earlier rulings in October and November by three other Ohio Federal Judges, who had dismissed at least sixty-six (66) cases without prejudice due to the failure of plainitffs to demonstrate that they owned the mortgages at the inception of the Federal Court foreclosure actions.
Judge HOLSCHUH's dismissal order was a follow-up to a previous show cause order he enterred on November 27, 2007, ordering the plaintiff's lawyer to file a memorandum of law showing cause while these cases should not be dismissed. Judge HOLSHUH's earlier show cause order was reported within LEXIS-NEXIS at:
In re Foreclosure Cases, Case Nos. 07-cv-166, 07-cv-190, 07-cv-226, 07-cv-279, 07-cv-423, 07-cv-534, 07-cv-536, 07-cv-642, 07-cv-670, 07-cv-706, 07-cv-714, 07-cv-727, 07-cv-731, 07-cv-963, 07-cv-999, 07-cv-1047, 07-cv-1091, 07-cv-1119, 07-cv-1150, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION, 2007 U.S. Dist. LEXIS 90812, November 27, 2007, Decided, November 27, 2007, Filed. [Judge John D. HOLSCHUH]
The militancy of Ohio Federal COurts in demanding that plaintiff's show minimal standing by demonstrating actual ownership of the mortgages they are seeking to foreclose was first shown by Judge Christopher A. BOYKO in an order handed down on October 31, 2007, dismissing fourteen cases where plaintiff DEUTSCHE BANK had filed assignments showing that it acquired interest in the mortgages AFTER the commencement of the suit. On November 14, 2007, Judge Kathleen M. O'MALLEY, also like Judge BOYKO of the Northern District (Eastern Division), handed down an order dismissing thirty-two (32) additional cases. The very next day (November 15, 2007), Judge Thomas M. ROSE, of the Southern District (Western Division) dismissed an additional twenty (20) cases.
With Judge HOLSHUH's ruling, the BOYKO rationale seems to have now been embraced by four federal judges from two districts and both the Eastern and Western Division of the Southern District.
ALL three previous Ohio decisions are shown in the Legal Lounge at http://www.msfraud.org/law/lounge/lounge.html . See particularly, Judge BOYKO's original Order (See http://www.msfraud.org/law/lounge/Deutsche%20Bank%20Foreclosures%20Dismissed.pdf ). Hopefully, the webmaster will ADD Judge HOLSCHUH's well reasoned decision, as well.
Attorney Peter L. Mehler, of Reimer, Lorber & Arnovitz Co., L.P.A., asserts within his USFN (a network of foreclosure plaintiff attorneys) article "OH: Federal Court Dismisses FCs en Masse for Lack of Standing" ( http://www.usfn.org/AM/Template.cfm?Section=Home&CONTENTID=8348&SECTION=Article_Library&TEMPLATE=/CM/HTMLDisplay.cfm ) that the BOYKO ruling has resulted in the dismissal of "well over 100 pending cases". It is unclear what the basis is for this assertion, but it certainly SEEMS plausible. The three key orders cited above reflected bulk dismissals of cases brought by the SAME plaintiffs and seemingly the SAME attorney. It stands to reason that other dismissals of single cases wouldn't have made the news. Moreover, it may very well be that plaintiffs realizing that they failed to meet the standing threashold may have taken a voluntary non-suit rather than incur the wrath of these Federal Judges and just await dismissal.
There ARE some published indications that at least Judge ROSE has enterred other orders to show cause since November 15, 2007:
HSBC Bank United States v. Rayford, Case No. 3:07-CV-428, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION, 2007 U.S. Dist. LEXIS 86215, November 21, 2007, Decided, November 21, 2007, Filed. [Judge Thomas M. ROSE]
NovaStar Mortg. v. Grooms, Case No. 3:07-CV-395, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION, 2007 U.S. Dist. LEXIS 86214, November 21, 2007, Decided, November 21, 2007, Filed. [Judge Thomas M. ROSE]
NovaStar Mortg., Inc. v. Riley, Case No. 3:07-CV-397, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION, 2007 U.S. Dist. LEXIS 86216, November 21, 2007, Decided, November 21, 2007, Filed. [Judge Thomas M. ROSE]
There is admittedly a bit of a LEXIS reporting lag, so there may be some other show cause orders or dismissals that just haven't been yet reported.
Trying to identify ALL of the federal cases DISMISSED as a consequence of the standing issue is challenging without reference to the names or parties or the cause numbers. WITH such information, the dismissal orders would presumably all be avilable through PACER.
Judge ROSE's bulk dismissal order has also been published through LEXIS-NEXIS:
In re Foreclosure Cases, CASE NO. 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 FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION, 2007 U.S. Dist. LEXIS 84569, November 15, 2007, Decided, November 15, 2007, Filed [Judge THomas M. ROSE]
Similarly, Judge BOYKO's dismissal order is also available through LEXIS-NEXIS:
In re Foreclosure Cases, CASE NO. NO.1:07CV2282, 07CV2532, 07CV2560, 07CV2602, 07CV2631, 07CV2638, 07CV2681, 07CV2695, 07CV2920, 07CV2930, 07CV2949, 07CV2950, 07CV3000, 07CV3029, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION, 2007 U.S. Dist. LEXIS 84011, October 31, 2007, Decided, October 31, 2007, Filed. [Judge Christopher A. BOYKO]
Gretchen MORGENSON, of the New York Times (http://www.nytimes.com), has reported the previous three Ohio federal court orders. Several Forum participants have cited Ms. MORGENSON's articles in previous posts. The NY Times usually makes stories available online for FREE for thirty days. Thereafter, the stories are available in the fee-based Times Archive. Those not already familiar with this issue might want to review:
"Dubious Fees Hit Borrowers in Foreclosures"
By Gretchen MORGENSON
New York Times
November 6, 2007
"Foreclosures Hit a Snag for Lenders"
By GRETCHEN MORGENSON
New York Times
November 15, 2007
"Judge Demands Documentation in Foreclosures"
By Gretchen MORGENSON
Nov. 17, 2007
It is unclear whether a fourth federal judge embracing the BOYKO reasoning is still national news.
As is well known to regular participants of the MS Fraud Forum, these Ohio federal court decisions have been the subject of spirited discussion. Several of the more spirited discussion threads are shown below:
"Judge halts foreclosures" http://www.websitetoolbox.com/tool/post/ssgoldstar/vpost?id=2348972
"Another 27 foreclosures tossed-Boyko ruling cited"
"Ohio case might add to lender problems, Foreclosures blocked; ownership documents not produced in court"
"Major win in Ohio proves Nye's arguments and contentions were right on target"
"The mess that Boyko made-a not so complimentary analysis" http://www.websitetoolbox.com/tool/post/ssgoldstar/vpost?id=2321439
Bear in mind that this is NOT an exhaustive list of references to the BOYKO, ROSE and O'MALLEY Decisions. For a more comprehensive list of topical posts, use the MS Fraud Forum SEARCH facility with intuitive keywords like "BOYKO", "O'MALLEY" and/or "ROSE".
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I am inclined to believe that the embrace of the BOYKO ruling by other federal judges reflects its likely durability and sustainability of that decision.