Michelle Garcia Gilbert, Esquire

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Michelle Garcia Gilbert, Esquire

• Gilbert McGrotty Group, Florida

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Current cases on standing

• Standing To sue, have interest in claim at
  issue that law will recognize as sufficient
  predicate for determining issue.
• Federal court standing (Plaintiff has burden)
• Article III. U.S. Constitution
• Plaintiff suffered actual injury
• Injury attributable to defendant
• Favorable decision will compensate plaintiff.
• State court standing varies, but often broader
  concept- real party in interest

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Current cases on standing

• State and federal cases vary based upon facts,
  local court rules and orders, and politics.
• In re Hill, US Bkrtcy, D. Arizona, July 6, 2009,
• No. 208-bk-16161-EWH, Memorandum decision
• Facts Original lender/ MERS as nominee and
  beneficiary mortgage assigned to servicer
  note had allonge (paper annexed to negotiable
  instrument, for endorsements too numerous or
  lengthy to be contained in the original), last
  one in blank.
• RESPA letter does not disclose owner.

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Current cases on standing

• In re Hill, continued
• Holding
• Though record was confusing, stay relief
  movant/servicer produced original note and
  therefore is real party in interest.
• Also, needs standing, which with ability to
  enforce note, shows standing.

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Current cases on standing

• SC Bankruptcy Court
• While this Courts prior order stated that an
  accurate chain of title is essential when
  transferring mortgages so that ownership can be
  readily determined, this was not stated as a
  holding or a requirement for transfer of notes
  and mortgages but rather to express a general
  rule that would alleviate problems such as the
  one presently before the Court.

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Current cases on standing

• Assignor of mortgage, by assignment recorded
  after action filed, and of note with blank
  endorsement, established real party in interest
  based on possession of original note-
• U.S. Bank, et al v. Marcino, 2009 Ohio 1178, (OH
  CA 2009)
• In re Foreclosure Cases, 521 F. Supp. 2d 650
  (USDC, SD OH 2007)- Plaintiffs failed to follow
  local court order to show jurisdiction, including
  assignments, affidavits showing ownership.

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Current cases on standing

• Contrast
• Two NY cases
• Washington Mutual v. Patterson, 2008 NY Slip Op
  52507 (SC NY 2008)- Though there was no written
  assignment prior to filing of complaint, there
  was no proof of physical delivery or proof
  plaintiff was holder of loan, so no standing
  assignment can be effective with physical
  delivery. See, also, Lasalle Bank v. Ahearn,
  2009 NY Slip Op 01388 (SC NY 2009).

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Current cases on standing

• In re Almeida, US Bkrtcy, D. MA, July 24, 2009,
  no. 08-17047-JNF, and
• In re Hayes, 393 B.R. 259 (US Bkrtcy, D. MA
  2008)
• Both cases addressed standing of secured party to
  bring stay relief action.
• Almeida, with LPA ratifying defective AOM,
  established standing, but Hayes creditor did not
  since even unrecorded AOM ever proven.

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Current cases on standing