IN THE COURT OF COMMON PLEAS

SUMMIT COUNTY, OHIO

DEUTSCHE BANK NATIONAL TRUST )
COMPANY AS TRUSTEE FOR )
SOUNDVIEW HOME LOAN TRUST )
2005-4, ASSET-BACKED CERTIFICATES,)
SERIES 2005-4, C/O CHASE MANHATTAN)
MORTGAGE COMPANY )
)
Plaintiff, )
)
)
)
GLENN E. HOLDEN, et aI., )
)
Defendants. )
Case No. 20 II 08 4500
JUDGE COSGROVE
DEFENDANTS GLENN AND ANN
HOLDEN'S MOTION FOR LEAVE
TO REPLY TO PLAINTIFF'S
OPPOSITION TO DEFENDANTS'
MOTION TO DISMISS
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NOW COMES Defendants Glenn and Ann Holden, by and through counsel, and
respectfully request leave of court to file the attached reply brief in response to Plaintiffs
Opposition to Defendant's 12(B)(I) motion to dismiss. Good cause exists for a reply because
Plaintiff has misrepresented its status to this Court. Plaintiff is incorrect that simply pleading that
it is entitled to enforce is sufficient under Ohio law. Actual physical possession of the
Defendant's original note is required for foreclosure when a nonholder attempts to enforce the
note. R.C. 1303.31. The lack of any indorsement proves that Plaintiff is not a holder. The failure
to plead actual possession of Defendants' note necessitates the dismissal of the complaint.
Respectfully submitted,
DANN, DOBERDRUK & WELLEN LLC

MafCE. Dann (0039425)
Grace Doberdruk (0085547)
20521 Chagrin Blvd, Suite D
Shaker Heights, Ohio 44122
216-373-0539 Telephone
216-373-0536 Fax
mdann@dannlaw.com
grace@dannlaw.com
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
DEUTSCHE BANK NATIONAL TRUST )
COMPANY AS TRUSTEE FOR )
SOUNDVIEW HOME LOAN TRUST )
2005-4, ASSET-BACKED CERTIFICATES,)
SERmS 2005-4, CIO CHASE MANHATTAN)
MORTGAGE COMPANY )
)
Plaintiff, )
)
v. )
)
GLENN E. HOLDEN, et al., )
)
Defendants. )
Case No. 2011 084500
JUDGE COSGROVE
DEFENDANTS GLENN AND ANN
HOLDEN'S REPLY BRIEF
Plaintiff Deutsche Bank National Trust Company as Trustee for Soundview Home Loan
Trust 2005-4, Asset-Backed Certificates, Series 2005-4, clo Chase Manhattan Mortgage
Company (hereinafter "Deutsche Bank as Trustee") is not entitled to enforce Defendant Glenn
Holden's note because Plaintiff never pled actual physical possession of the Defendant's note.
See Complaint. Thus, Plaintiff Deutsche Bank as Trustee is incapable of enforcing the mortgage
and cannot foreclose. Plaintiff s complaint must be dismissed.
THIS COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE THERE IS NO
JUSTICIABLE CONTROVERSY BETWEEN PLAINTIFF AND THE DEFENDANTS
The Ohio Constitution in Article 4 only grants the Common Pleas Courts of Ohio
jurisdiction over justiciable matters. See Section 4(8), Article 4, Ohio Constitution. A justiciable
matter involves an actual controversy. When the foreclosing Plaintiff does not own the note and
mortgage at the time the complaint is filed there is no justiciable controversy between the
plaintiff and the defendant homeowner, and thus no subject matter jurisdiction.
"Whenever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction on the subject matter, the court shall dismiss the action." Civ. R. l2(H)(3).
"It has been long and well established that it is the duty of every judicial tribunal to
decide actual controversies between parties legitimately affected by specific facts and render
judgments which can be carried into effect." Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14.
For a cause to be justiciable, there must exist a real controversy presenting issues which are ripe
for judicial resolution and which will have a direct and immediate impact on the parties. See
Burger Brewing Co. v. Liquor Control Comm. (1973),34 Ohio St.2d 93, 97-98. More recently,
in State ex rei. Barclays Bank PLC V. Court ofCommon Pleas ofHamilton Ctv (1996), 74 Ohio
St.3d 536, 542, 1996-0hio-286, the court stated, "[a]ctual controversies are presented only when
the plaintiff sues an adverse party. This means not merely a party in sharp and acrimonious
disagreement with the plaintiff, but a party from whose adverse conduct or adverse property
interest the plaintiff properly claims the protection of the law."
When Plaintiff Deutsche Bank as Trustee filed the complaint Plaintiff had no property
interest that it could claim protection for under the law.
Since the Ohio Constitution grants the Common Pleas Courts jurisdiction only over
justiciable matters, this Court does not have jurisdiction to render judgment in this case. At the
time this case was filed, Deutsche Bank as Trustee did not produce evidence of ownership of
Glenn Holden's note and the Holdens' mortgage. Thus, no actual controversy existed between
Plaintiff and the Defendants. Without ownership, Deutsche Bank as Trustee suffered no harm by
an alleged default in payment and no justiciable controversy existed.
Although this Court has subject matter jurisdiction over the general topic area of
foreclosures, this Court lacks subject matter jurisdiction over the Holden foreclosure because
Deutsche Bank as Trustee failed to attach valid proof of ownership at the time the complaint was
filed. The recent decision in Deutsche Bank National Trust Company v. Popov, Cuyahoga
County Case No. CY-09-691971 held:
THE DISMISSAL OF A FORECLOSURE ACTION IS REQUIRED UPON FfNDfNG
THAT PLAfNTIFF WAS NOT REAL PARTY IN fNTEREST AT THE TIME IT FILED THE
ACTION. IF A PARTY LACKS STANDfNG, BY EXTENSION, THE TRIAL COURT
LACKS SUBJECT MATTER JURISDICTION OYER THE ACTION.
The note attached to complaint does not comply with what is required under the Pooling
and Servicing Agreement for the trust Soundview Home Loan Trust 2005-4, Asset-Backed
Certificates, Series 2005-4 to obtain ownership of Glenn Holden's note. Thus, Deutsche Bank as
Trustee is not entitled to any payments under the note from Glenn Holden and has suffered no
harm from an alleged default. In order to have a justiciable controversy there must be a current
injury. Since Deutsche Bank as Trustee does not own Glenn Holden's note, there is no justiciable
controversy between Deutsche Bank as Trustee and Glenn and Ann Holden and this Court lacks
subject matter jurisdiction under the Ohio Constitution to render a judgment.
The ninth district case law cited by Plaintiff is superseded by the requirement under the Ohio
Constitution for the existence of a justiciable controversy. Plaintiff Deutsche Bank as Trustee's
lack of ownership of Glenn Holden's note prevents there from having been a justiciable
controversy between the parties and the complaint must be dismissed.
1. PLAINTIFF MISREPRESENTED THAT IT IS THE HOLDER OF
DEFENDANT'S NOTE AND THE STATUS OF CHASE MANHATTAN
MORTGAGE COMPANY
Plaintiff Deutsche Bank as Trustee states that it is "the current holder of the Note".
(Plaintiffs Opposition, page 5). That is a blatantly false representation to this Court.
"If an instrument is payable to an identified person, negotiation requires transfer of
possession of the instrument and its indorsement by the holder." R.C. 1303.21(B). Glenn
Holden's promissory note is payable to an identified person, namely NovaStar Mortgage, Inc.
Since there is no indorsement on the note there has been no valid negotiation of Glenn Holden's
note to the Plaintiff. Plaintiff Deutsche Bank as Trustee is NOT the holder of Glenn Holden's
note and has misrepresented its legal status to this Court in the attempt to collect a debt.
Plaintiff also misrepresents the status of Chase Manhattan Mortgage Company, which
has been merged out of existence. In May 20 I0 Chase Manhattan Mortgage Company had
surrendered its license to do business in Ohio. See Defendant's Exhibit 1.
A court may take judicial notice at any stage in the proceedings. Evid. R. 201(F). Judicial
notice of adjudicative facts is appropriate when the fact is not subject to reasonable dispute and
"capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned." Evid. R. 20 I(B)(2). Postings on government websites are inherently
authentic. Sannes v. Jeff Wyler Chevrolet, Inc. 1999 WL 33313134 (S.D. Ohio Mar. 31, 1999).
On August 12,2011, despite the fact that Chase Manhattan Mortgage Company ceased
to exist for over a year, the law firm Manley Deas Kochalski LLC filed a foreclosure complaint
against Glenn and Ann Holden purportedly on behalf of a trust with Deutsche Bank as Trustee
and used the former address of Chase Manhattan Mortgage Company to file the complaint.
Plaintiff has offered no explanation for this apparent fraud.
2. PLAINTIFF IS NOT ENTITLED TO ENFORCE THE NOTE BECAUSE IN
ADDITION TO ALL THE OTHER DEFECTS, PLAINTIFF FAILED TO
PLEAD ACTUAL POSSESSION OF GLENN HOLDEN'S NOTE IN THE
COMPLAINT
If a foreclosing Plaintiff is not a holder with a special indorsement, then the foreclosing
Plaintiff must have actual physical possession at the time the complaint is filed. Plaintiff has
failed to show that it is entitled to enforce the note.
Ohio Revised Code permits a nonholder to enforce the note if the nonholder has actual
physical possession AND the rights of a holder. Not only did Plaintiff Deutsche Bank as
Trustee fail to plead that it had actual physical possession of Glenn Holden's note, but Plaintiff
-has completely failed to explain how it has the rights of a holder. These deficiencies are grounds
for dismissal of the complaint.
3. DEFENDANTS HAVE THE RIGHT TO CHALLENGE A FALSE
ASSIGNMENT OF THEIR MORTGAGE TO A TRUST
An obligor "may assert as a defense any matter which renders the assignment absolutely
invalid or ineffective, or void." 6A C.l.S. Assignments 132 (2010). "These defenses include
nonassignability of the instrument, assignee's lack oftitle... Obligors have standing to raise these
claims because they cannot otherwise protect themselves from having to pay the same debt
twice." Livonia Props. Holdings. LLC v. /2840-12976 Farmington Rd. Holdings. LLC, 20 I0
U.S. App. LEXIS 22764 (6
th
Cir. Oct 28, 2010).
An obligor is entitled to raise the defense of nonassignability and that is what the
Defendant is raising here. Since the Pooling and Servicing Agreement required an assignment to
the trust to be executed by November I, 2005 the assignment of mortgage attached to the
complaint which was executed in September 17, 2010 is too late. The trust had already closed.
Thus, Defendants can successfully raise the defense of nonassignability to defeat Plaintiff's
claims of ownership and prevent foreclosure.
4. MERS SEVERED GLENN HOLDEN'S NOTE FROM GLENN AND ANN
HOLDEN'S MORTGAGE
During origination of the loan the parties decided to have the note and mortgage held by
separate entities. The note was signed by Glenn Holden onlyand was payable to NovaStar
Mortgage, Inc. A Virginia Corporation. See Complaint, Exhibit A. The mortgage was signed by
Glenn and Ann Holden and was granted to Mortgage Electronic Registrations Systems, Inc. See
Complaint, Exhibit B ("MERS is the mortgagee under this Security Instrument.")
Since there is no indorsement on the note Glenn Holden's note remains payable to
NovaStar Mortgage, Inc to this day. However, when viewing the purported to assignment of the
Holdens' mortgage to Deutsche Bank National Trust Company as Trustee for Soundview Home
Loan Trust 2005-4, Asset-Backed Certificates, Series 2005-4 whose address is c/o Chase
Manhattan Mortgage Company this Court must admit that the Holdens' mortgage has been
permanently severed from Glenn Holden's note. The note and mortgage are clearly held by
separate parties. The mortgage has changed owners - the note did not. Viewing all allegations in
Plaintiffs favor, Plaintiff has shown this Court, by attaching this assignment of mortgage to the
complaint, that the Holdens' note and mortgage have been severed and are now unenforceable.
CONCLUSION
Plaintiff is not the holder of the note, and failed to sufficiently plead that it is entitled to
enforce the note or mortgage. The fact that the assignment of mortgage to Plaintiff was executed
on September 17, 2010 and used the address of Chase Manhattan Mortgage Company as the
address of the trust, four months after Chase Manhattan Mortgage Company surrendered it s
license to do business in Ohio, in addition to the assignment of mortgage being executed years
after the closing date of the trust is reason to suspect fraud. Defendants Glenn and Ann Holden
respectfully request that the complaint be dismissed.
Respectfully submitted,
DANN, DOBERDRUK & WELLEN LLC
-
Marc E. Dann (0039425)
Grace M. Doberdruk (0085547)
20521 Chagrin Blvd, Suite D
Shaker Heights, Ohio 44122
216-373-0539 Telephone
216-373-0536 Fax
mdann@dannlaw.com
grace@dannlaw.com
Attorneys for Defendants Glenn and Ann Holden
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served by mail this -tldayof
January 2012 to the following address:
John E. Cod rea
David B. Bokor
Matthew P. Curry
Kristan A. Prill
Manley Deas Kochlaski LLC
P.O. Box 165028
Columbus, OH 43216-5028
CitiFinancial, Inc.
c/o CT Corporation System, Registered Agent
1300 East Ninth Street
Cleveland, OH 441 14
JP Morgan Chase Bank, N.A.
c/o CT Corporation System, Registered Agent
1300 East Ninth Street
Cleveland, OH 44114
Respectfully submitted,
~ ~ ~ W ~ V / J c
Grace Doberdruk (0085547)
DANN, DOBERDRUK & WELLEN LLC