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William A. Roper, Jr.

In a landmark decision by the Kentucky Court of Appeals handed down today in the case AUGENSTEIN v. Deutsche Bank, the Court overturned a judicial order of foreclosure in favor of Duetsche Bank and ordered the case dismissed due to the plaintiff's lack of standing.

Pro se litigant Glenn AUGENSTEIN defeated Deutsche Bank, as trustee of the Soundview Home Loan Trust 2005-OPT4, which had obtained a summary judgment before the Henry County Circuit Court in June 2008.

This is the first appellate decision in Kentucky to dismiss a mortgage foreclosure case due to lack of standing.

Glenn AUGENSTEIN represented himself both before the Henry Circuit Court and on appeal.  Deutsche Bank was represented by Ohio foreclosure mill law firm Lerner, Sampson & Rothfuss.  Deutsche Bank did not file an Appellee's Brief in this case.

The decision was released this morning by the Kentucky Court of Appeals and is posted on Scribd as well as the Court's web site:

AUGENSTEIN v. Deutsche Bank, No. 2009-CA-000058-MR, February 18, 2011 [unpublished]
http://www.scribd.com/doc/49109485/Augenstein-v-Deutsche-Bank-Opinion-Vacating-and-Remanding-KY-18-Feb-2011

Regrettably, the case is marked "Not For Publication".

Still, the case is an excellent read and while not binding authority in other jurisdictions, can be cited as instructive in other cases.

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Angelo

Is it possible to get copies of his pleading, district and appeals court? are they online anywhere?

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William A. Roper, Jr.
The Key Ohio Appellate Decisions On Standing

For comparative purposes, these are the three key Ohio decisions on plaintiff standing in foreclosure:
Wells Fargo Bank, N.A. v. Jordan, No. 91675, COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY, 2009 Ohio 1092; 2009 Ohio App. LEXIS 881, March 12, 2009, Released.
http://scholar.google.com/scholar_case?case=1340268357153930112

 
United States Bank Nat'l Ass'n v. Duvall, No. 94714, COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY, 2010 Ohio 6478; 2010 Ohio App. LEXIS 5461, December 30, 2010, Decided, December 30, 2010, Journalized.
http://scholar.google.com/scholar_case?case=2221628582871998788


Deutsche Bank Nat'l Trust Co. v. Triplett, No. 94924, COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY, 2011 Ohio 478; 2011 Ohio App. LEXIS 401, February 3, 2011, Released and Journalized.
http://www.sconet.state.oh.us/rod/docs/pdf/8/2011/2011-ohio-478.pdf
http://scholar.google.com/scholar_case?case=812050990608132803

*

See also these prior Forum message threads:

"PRO SE litigant WINS appeal against Wells Fargo" (04/01/09 at 12:24 PM)

http://ssgoldstar.websitetoolbox.com/post?id=3399479

 

"Ohio Court Reaffirms Standing Rule of Jordan and Duvall in Deutsche Bank Nat. Trust Co v. Triplett" (02/06/11 at 05:34 AM)

http://ssgoldstar.websitetoolbox.com/post?id=5080005

 

*

 

As mentioned above, the Augenstein v Deutsche Bank is the FIRST key Kentucky standing decision.


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The Equitable One
The case is marked "Not to be Published," and is governed by Kentucky Rule of Civil Procedure 76.28(4)(c), which states, in pertinent part:

"Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court."

A few recent cases on point:

1) "In conclusion, we turn to a procedural matter. Prior to oral argument, the Commonwealth requested leave to cite an unpublished opinion of this Court which was not final as of the date of oral argument. While a new section has been added to CR 76.28(4) allowing for the citation of unpublished opinions upon a showing that there is no published opinion on point, we read that rule as relating only to unpublished opinions which have become final. Accordingly, the Commonwealth's motion to cite a non-final opinion is hereby DENIED."  Alexander v Commonwealth, 220 S.W. 3d 704, 2007 Ky. App. LEXIS 95 (Ky. Ct. App. 2007). [emphasis added]

2) "To our knowledge, there are no published cases dealing explicitly with this question. The Court of Appeals, however, has rendered several unpublished decisions addressing the issue. Pursuant to Kentucky Rules of Civil Procedure (CR) 76.28, we are now permitted to cite such cases for consideration if there are no published opinions that address the same issue." Eberenz v Commonwealth, 2008 Ky. App. LEXIS 184 (Ky. Ct. App. 2008). [emphasis added]

3) "We note that parties to this action have cited to unpublished cases failing to meet the requirements of Kentucky Civil Rule 76.28(4)(c). This is particularly true where the parties have cited to unpublished cases from other jurisdictions. Kentucky Civil Rule 76.28(4)(c) only allows citation to unpublished Kentucky appellate opinions rendered after January 1, 2003. Accordingly, those cases cited in the parties' briefs failing to meet this criteria were not considered in deciding this matter." Ann Taylor, Inc. v Heritage Ins. Servs., 2008 Ky. App. LEXIS 215 (Ky. Ct. App. 2008). [emphasis added]


I expect this opinion will be cited for consideration, pursuant to this rule, in the very near future.

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Bill

Could someone explain the reasoning behind having a published vs. unpublished decision?  If you are making a decision on a matter of first impression why would it be unpublished?

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William A. Roper, Jr.
Quote:
Bill said:

Could someone explain the reasoning behind having a published vs. unpublished decision?  If you are making a decision on a matter of first impression why would it be unpublished?


Bill:

There is a fairly good Wikipedia article on the topic of publication of decisions under the topic "Non-publication" at:

http://en.wikipedia.org/wiki/Non-publication


The treatment is mostly from the Federal Appellate perspective, but the issues are essentially the same at the state court level.

From the perspective of printing and publication of cases within printed volumes, distinguishing between unpublished vs unpublished decisions makes more than a little sense.  That is to say, do you really need another printed volume of "published" decisions which add little to the body of understanding of existing law.  If the case law articluated is completely redundant with other prior decisions, the cases may serve mostly to destroy forests and take up space in law school libraries.

With the existence of convenient means of digital publication, including (a) posting decisions online by state courts, (b) digital publication on LEXIS, (c) digital publication on Westlaw, and (d) digital publication on Google Scholar, together with instant all text indexing of such digital decisions, a rather stark question arises as to precisely WHAT it means for a court to identify a case as "Not For Publication" and treatment of that case as NOT precedential, particularly where the issue is one of first impression within a state.

Putting this another way, what is it makes this a second class rather than a first class case?

It is one thing to say that a case might not meet the editorial cutoff for inclusion in a printed volume.  It is yet another to suggest that the law enunciated in an unpublished decision is less reliable or less applicable than that enunciated in published decisions.

Amendments to state and Federal Rules allowing for citation of an unpublished case where there exists no applicable case law seems to reflect the pendulum at least somewhat swinging back in a new direction.

*

In a case, such as the Augenstein v Deutsche Bank matter, where a matter both of first impression and an issue of great public importance is the subject of a decision, a very strong argument can be made that the designation "Not for Publication" was clearly erroneous.  It may be that the Kentucky Court of Appeals believed that the issues in this case were not as sharply developed due to the appellee's failure to file a brief at all.

Parties can seek the alteration or amendment of opinions to correct errors under the appellate rules of most jurisdictions.  If I was the appellant in the Augenstein matter, I would call the court's attention to the prevalence of post-commencement assignments within Kentucky and show that this is a matter of great concern in other places.  The Ibanez decision, which was decided by the Massachusetts Supreme Court AFTER the appellant's brief was written and the Augenstein matter submitted for decision by the Kentucky Court of Appeals is a particularly stark example of untimely assignment, albeit in a non-judicial foreclosure setting.

The Augenstein decision is clearly a significant case and a matter of first impression in Kentucky.  While the Equitable One is certainly correct that the decision can still be validly cited in Kentucky as authoritative, it is disappointing that in referring to it the case bears the "unpublished" stigma.  The decision is concise, consistent with decisions in the Federal Courts and those of appellate courts in several other states.  Its designation as "Not for Publication" is unfortunate and dimenishes its authority and influence for citation in other places.
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Angelo
I understand that this case might be a first in KY, but this has been the case in NY for some time. So, now all the foreclosure mills do is fabricate the assignments a couple of days prior to the commencement of the foreclosure action. 

What we really need is some courts to rule that these assignments are forgeries and not allowed because they cannot transfer an allegedly defaulted loan into a REMIC trust years after the closing dated.

Most of the plaintiffs argue that these are confirmatory assignments, but like the Ibanez decision, they were never made to start with, so there is no possible way for them to be confirmatory.
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The Equitable One
Holy Crap!!!

Just came across a copy of this October 2010 KY Supreme case relating to standing. The first paragraph made my head explode. That is all I've been able to read/stomach so far.

If you think it through, a person could file a lawsuit, have no
standing, and because the issue was never raised, the defendant waived the
right to argue standing, and the order and judgment are totally legal --
even though the prevailing party had no right to have the court hear the
dispute.

It may now be legal malpractice in Kentucky for
a defender of a foreclosure action to fail to raise standing.

http://www.scribd.com/doc/49220911/Harrison-v-Leach

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Bill

Quote:

I understand that this case might be a first in KY, but this has been the case in NY for some time. So, now all the foreclosure mills do is fabricate the assignments a couple of days prior to the commencement of the foreclosure action. 

What we really need is some courts to rule that these assignments are forgeries and not allowed because they cannot transfer an allegedly defaulted loan into a REMIC trust years after the closing dated.



I think this is on it's way with the recent MERS opinion out of NY.

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William A. Roper, Jr.
The Augenstein v. Deutsche Bank case is now shown within Lexis and is also up on Google Scholar.  The Lexis citation gives this unpublished case a little better reference when it is cited as authority.  The Goodle Scholar version has the advantage of hyperlinks to the cited cases:
Augenstein v. Deutsche Bank Nat'l Trust Co., No. 2009-CA-000058-MR, COURT OF APPEALS OF KENTUCKY, 2011 Ky. App. Unpub. LEXIS 137, February 18, 2011, Rendered.  [Unpublished]
http://scholar.google.com/scholar_case?case=8565145953136924254


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if you look at the first case of 2008 in the ky. court of appeals (home eq - chris blair) , you will see where a case against me was reversed and remanded based partly on "standing"- was a case of a lender suing me for an old deficiency in a foreclosure- i used the argument before it became popular

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William A. Roper, Jr.
Mr. Blair's Kentucky case certainly had escaped my notice.  It is an interesting read:

Blair v. HOMEQ Servicing Corp., No. 2008-CA-000001-MR, Court of Appeals of Kentucky, April 3, 2009 [Unpublished]
http://scholar.google.com/scholar_case?case=11847893304910337547



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Ellen
The brief in this case is interesting:

http://www.scribd.com/doc/76186566/Augenstein-v-Deutsche-Appellates-Brief
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