Quote: FnDoomed said:
At the bottom of page 6 the judge wrote:
There is, however, an important difference between holders and nonholders. While "holders" are entitled to enforce merely by having possession, a nonholder must show that, in addition to possessing the note, the person who transferred the note was itself a "holder":
If the transferee is not a holder because the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the instrument under section 3-301 if the transferor was a holder at the time of transfer.
You seem to be confused about what it is that you are reading. This is NOT a decision. This is the Brief of the Appellant, U.S. Bank, in its appeal to the Ohio Supreme Court in the Duvall case.
Other than Bevilaqua, this is probably the single most important case being litigated right now at the appellate level nationally.
And while "connect the dots" should be lauded for alerting us that the brief had been filed, simply posting a link, with no introduction or explanation whatsoever, was a real disappointment!
Frankly, it made my head hurt!
I was in the midst of sharing some other information on MERS Milestone Reports yesterday and hadn't gotten back to give the document a good read.
So what you are getting throughout is the Plaintiff-Appellant's spin on the Ohio cases. Bear in mind that the Appellant already LOST THIS CASE in the Ohio Court of Appeals. But the Eighth District Court of Appeals has been applying a different standard than other Ohio Districts.
I have discussed this principle in posts over the past several years. Frankly, in numerous cases, the defendant has raised the wrong defensive argument.
Although the standing requirement and the real party at interest rule are related, they are very different. Standing is often a Constitutional imperative under the open court provision of the state Constitution. Real party at interest is merely a rule of civil procedure.
Because defendants muddled these ideas in other appellate cases in several other appellate districts, the courts have ruled in those places that the real party at interest rule can be satisfied after commencement.
I have seen Ohio attorney muddle this argument repeatedly for the last several years. Hopefully, the appellee in Duvall can GET THIS RIGHT. Otherwise, it is going to be a very tough climate in Ohio in the years to come.
The Duvall case was discussed briefly in the previous thread:
"Ohio Court Reaffirms Standing Rule of Jordan and Duvall in Deutsche Bank Nat. Trust Co v. Triplett"
See also my previous thread discussing Federal Standing requirements in respect of the Ohio Federal dismissals:
"Some Interesting Recent Ohio Cases on Standing"
You also will see my posts anticipating this development dating back three years:
"Everhome Mortgage Company v. Rowland -- Ohio's State Courts Begin To Address Standing and Real Party At Interest"
There is also a nice exposition on standing by "Knows About" from 2009:
"Any 'standing' cases from Texas?"
The open courts provision of the Ohio Constitution is almost verbatim the same as the provision in the Texas Constitution.
"Standing and Jurisdiction Is Dependent Upon the Facts At the Commencement of the Suit"
"Who has the right to order foreclosure? I really need to know!"
"CT Appellate Court Denies Summary Judgment When Plaintiff Lacked Ownership At Commencement of Suit"
"PRO SE litigant WINS appeal against Wells Fargo"
"An Ohio Appellate Case Reinforcing the Holding in Byrd: Bank of N.Y. v. Gindele"