If a bank does not have its ducks in a row when it files a foreclosure lawsuit, the homeowner may be able to keep his/her home . . . at least for a while longer. For example, the Illinois Appellate Court for the Second District recently dismissed a foreclosure lawsuit where the bank failed to prove that it was the holder of the promissory note and mortgage on the day it filed the foreclosure lawsuit.
In Deutsche Bank National Trust Co. v. Gilbert, Deutsche Bank filed a foreclosure lawsuit against a homeowner – James Gilbert. Gilbert argued that Deutsche lacked standing to bring the foreclosure suit because Deutsche had not established that it owned the mortgage and note associated with his home on the date the suit was filed – March 10, 2008.
Deutsche’s complaint showed that Gilbert entered into a home mortgage loan with WMC Mortgage Corporation on August 15, 2005. However, neither the note nor the mortgage mentioned Deutsche. So, in order to demonstrate that it had standing to sue, Deutsche presented an “Assignment,” purportedly showing that WMC transferred the mortgage and note to Deutsche. The Assignment, however, was dated August 25, 2008 – after the foreclosure lawsuit was filed. An employee for Deutsche submitted an affidavit claiming that the actual assignment to Deutsche occurred on November 1, 2005, and that the written Assignment merely commemorated the earlier transfer. But, the Assignment itself did not state the date on which the note and mortgage were actually assigned to Deutsche and the Court disregarded the affidavit because it was not supported by any documents or other evidence.
In Illinois, a plaintiff must have standing to sue on the date the case is filed. Because Deutsche failed to show that it owned the note and mortgage associated with Gilbert’s home on the date that Deutsche filed the foreclosure lawsuit, the Appellate Court ruled that Deutsche lacked standing and that the foreclosure lawsuit must be dismissed.
The attorneys at DeBlasio & Donnell LLC are experienced business litigators, including foreclosure defense. To schedule an appointment to speak with one of our attorneys, call us Toll Free at (877) 646-9245 or contact us via our website at http://dd-lawfirm.com/contact.php. We are here to help.
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