Preview
ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Thursday, March 18, 2010 5:07:54 PM
CASE NUMBER: 2007 CV 09571 Docket ID: 14898929
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
COURT OF COMMON PLEAS
MONTGOMERY COUNTY, OHIO
U.S. Bank, N.A., as Trustee for the Structured Case No. 2007 CV 9571
Asset Securities Corporation Mortgage Loan
Trust, 2006- NC1, Judge Connie S. Price
Plaintiff,
PLAINTIFF’S REPLY BRIEF IN
-vs- RESPONSE TO MAGISTRATE’S
DECISION FILED FEBRUARY 10, 2010
Wesley A. Quinn, et al.,
Defendants.
The plaintiff herein, U.S. Bank, N.A., as Trustee for the Structured Asset
Securities Corporation Mortgage Loan Trust, 2006- NC1 (“Plaintiff”), by and through
undersigned counsel, does hereby submit its Reply Brief in Response to the Magistrate’s
Decision entered February 10, 2010, pursuant to Civ.R. 53. Plaintiff incorporates herein
the Memorandum of Law which follows.
Respectfully submitted,
LSR # 200725626
/S/ Deanna C. Stoutenborough
Deanna C. Stoutenborough (# 0069761)
Rick D. DeBlasis, Esq. (# 0012992)
Craig A. Thomas, Esq. (#0037667)
LERNER, SAMPSON & ROTHFUSS
Attorney for Plaintiff
120 E. Fourth St., 8th Floor
Cincinnati, OH 45202
Ph.: (513) 412-6093
2
MEMORANDUM
Plaintiff and Defendants, Wesley A. Quinn and Marion L. Quinn (“the Quinns”),
appear to be in agreement on one point: the Magistrate erred with regard to, both, his
factual findings and conclusions of law on the issue of Plaintiff’s standing and status as
holder in due course. Plaintiff agrees with the Quinns that the Magistrate committed
plain error in finding that Plaintiff was a “nonholder in possession” of the Note; but this
is the sole point on which these parties agree. Plaintiff urges this Court to adopt the
Magistrate’s ultimate conclusion that Plaintiff established its standing as real party in
interest in this mortgage foreclosure action.
The Magistrate’s finding that Plaintiff was a nonholder in possession of the Note
is patently contrary to the evidence and testimony introduced by Plaintiff, including the
Affidavit of Bailee of Records Custodian, the Notice of Filing Note with Endorsement,
Notice of Filing Assignment of Mortgage, and the various trust documents introduced
and considered by the Magistrate. The Master Custodial File contains, among other
original documents and records, the original Note bearing the endorsement executed in
blank by Steve Nagy as VP of Loan Documentation of New Century Mortgage Corp.;
the original Mortgage executed by the Quinns; the Corporation Assignment of
Mortgage dated March 3, 2006 and executed in blank by New Century Mortgage
Corporation; and chain of custody records. In particular, though not exclusively, the
chain of custody records that constitute part of the Master Custodial File and that were
3
introduced as evidence to the Court pursuant to the Affidavit of Bailee of Master
Custodial File, is incontrovertible evidence that Deutsche Bank National Trust
Company was in possession of the original Note and Mortgage and other original loan
documents, as Custodian for Plaintiff, at least as of October 2006.
Plaintiff has since proffered the Affidavit of Mark J. Kelly, Vice President of
Deutsche Bank National Trust Company as Custodian for Plaintiff, which this Court
should consider. In said affidavit, the Custodian for Plaintiff avers under penalty of
perjury that Deutsche Bank National Trust Company as Custodian for Plaintiff received
custody and possession of the original Custodial File containing, among other original
loan documents, the Note given by Defendant herein, Wesley Quinn, bearing the blank
endorsement of New Century Mortgage Corporation, and the Mortgage executed and
delivered by the Quinns, on or about June 1, 2006. But even without this Affidavit, the
incontrovertible evidence and testimony before the Court at the time the Magistrate
rendered his Magistrate’ Decision was that Plaintiff was owner and holder of the Note
and the Mortgage given by the Quinns in exchange for the loan they obtained from
New Century Mortgage Corporation, as a result of negotiation and transfer of the Note
and equitable assignment of the Mortgage.
The Magistrate’s finding that the Note was not negotiated and transferred to
Plaintiff until after Plaintiff filed its Complaint in November 2007 was made in utter
disregard of the facts and evidence before him. But moreover, it is contrary to the law
4
in Ohio. For more than a century, the law in Ohio has been, and continues to be, that
an instrument given to secure an obligation evidenced by a promissory note is merely
incidental to the note it was given to secure. Furthermore, creation and transfer of
interests in and to negotiable instruments, such as promissory notes, is governed
exclusively by Article 3 of the Uniform Commercial Code codified in Ohio law in Title
13, Chapter 3 of the Ohio Revised Code.
Thus, sale and transfer of possession, alone is sufficient to convey unto Plaintiff
the rights of a holder as of the date of sale and transfer. O.R.C. § 1303.22. Section
1303.22 provide, in pertinent part, as follows:
A) An instrument is transferred when it is delivered by a person other
than its issuer for the purpose of giving to the person receiving delivery
the right to enforce the instrument.
(B) Transfer of an instrument, whether or not the transfer is a negotiation,
vests in the transferee any right of the transferor to enforce the instrument,
including any right as a holder in due course, [ . . . ]
(C) Unless otherwise agreed, if an instrument is transferred for value the
transferee has a specifically enforceable right to the unqualified
indorsement of the transferor, but negotiation of the instrument does not
occur until the indorsement is made by the transferor. (Emphasis added.)
O.R.C. § 1303.22(A), (B), and (C).
With or without an actual endorsement or allonge, Plaintiff became holder of the
Note and Mortgage upon transfer of the Note by New Century Mortgage Corp in 2006.
In this instance, though, a negotiation of the Note also occurred. The irrefutable evidence
and testimony entered as part of the record of these proceedings is that New Century
5
Mortgage Corporation affixed its blank endorsement on the Note and then transferred the
Note with endorsement.
Upon the negotiation and transfer of the Note, the transferee, Plaintiff, succeeded
to all the rights of the transferor, including the rights of holder in due course. O.R.C. §
1303.32. A holder in due course of a promissory note is one who gave value in good
faith to acquire the instrument and who took the instrument without facial evidence of
forgery and without notice that the instrument is overdue or has been dishonored, or
contains an unauthorized signature or has been altered and without notice that any
party has a defense or claim in recoupment described in division (A) of section 1303.35
of the Revised Code. O.R.C. § 1303.32(A)(2)(a) through (f).
Plaintiff herein paid valuable consideration to acquire and did take the Note
given by Defendant, Wesley Quinn, in good faith in 2006 when the Note was not in
default, or without notice of any default. As the Quinns have never asserted forgery,
alteration, or any defense or claim in recoupment, all the requisite elements for a
finding that Plaintiff was a holder in due course when it acquired the Note in 2006 have
been satisfied. Consequently, the Magistrate plainly erred in finding that Plaintiff was a
“nonholder in possession” when it filed its Complaint for Foreclosure in November
2007.
As Plaintiff was a holder in due course on the date it filed its foreclosure
complaint, Plaintiff was lawfully entitled to bring this action to enforce the mortgage
6
through foreclosure. Sale, transfer, and negotiation of the Note effected a transfer of the
Mortgage, by operation of law, even without a recorded assignment. Edgar v. Haines
(1923), 109 Ohio St. 159, 141 N.E. 837. It is axiomatic in Ohio law that the negotiation of
the note results in a corresponding transfer of the mortgage by operation of law, without
the necessity of a separate assignment of the mortgage. Kuck v. Sommers (1950), 59 Ohio
Law Abs. 400, 100 N.E.2d 68; Kelly v. Tracy & Avery Co. (1905), 71 Ohio St. 220, 232-233;
Kernohan v. Manss (1895), 53 Ohio St. 118, 41 N.E. 258; Holmes v. Gardner (1893), 50 Ohio
St. 167, 33 N.E. 644; 69 Ohio Jur. 3d Mortgages § 461 (February 2008). See also, The Bank
of New York as Trustee v. Dobbs, Knox County, App. No. 2009-CA-000002, ¶29, 2009-
Ohio-4742; LaSalle Bank National Association v. Street, Licking App. No. 08CA60, 2009-
Ohio-1855; Deutsche Bank National Trust Co. v. Pagani, Knox County App. No. 09-CA-
000013, 2009-Ohio-5665; U.S. Bank v. Marcino, 181 Ohio.App.3d 328. No mortgage
assignment, recorded or unrecorded, was needed since the mortgage transferred to
Plaintiff by virtue of an equitable assignment. Id.
As the current holder of the note and mortgage at issue Plaintiff was the real
party in interest with standing to bring the within action at the time if filed the
foreclosure complaint herein. Wells Fargo Bank, N.A. v. Stovall, Cuyahoga App. No.
91802, 2010-Ohio-236 ¶15; Marcino, supra; First Union Natl. Bank v. Hufford (2001) 146
Ohio App.3d 673, 677; Shealy v. Campbell (1985), 20 Ohio St.3d 23, 24. Pursuant to Civ.R.
17(A), the real party of interest shall 'prosecute' the claim. Civ.R. 17(A); Wells Fargo Bank,
7
N.A. v. Stovall, supra, Wachovia Bank, N.A. v. Cipriano, Guernsey App.No. 09CA007, 2009-
Ohio-5470, ¶ 38; LaSalle Bank Natl. Assn. v. Street, supra.
The recording of the assignment of mortgage is not determinative of Plaintiff’s
standing as real party in interest. U.S. Bank National Association v. Bayless, Delaware
App. No. 09 CAE 01 004, 2009 Ohio 6115 ¶22 and 23; Wachovia Bank, N.A. v. Cipriano,
Guernsey App. No. 09CA007, 2009 Ohio 5470, ¶38; The Bank of New York as Trustee v.
Dobbs, supra; LaSalle National Association v. Street, supra. Filing the assignment with the
trial court within a reasonable time after the foreclosure complaint is filed, but before
judgment is entered, is sufficient to satisfy the requirement of Civ.R.17(A). See, Bayless,
supra; Cipriano, supra; Stovall, supra; Dobbs, supra; Bank of New York v. Stuart, Lorain
App. No. 04-CA-008953, 2007-Ohio-1483 ¶12.
The statute of frauds, O.R.C. § 1335.05, does not disturb any of the long-standing
and binding precedent set forth in the legal argument above. In fact, the statute of
frauds is wholly inapposite here. The statute of frauds, R.C. 1335.05, requires merely
that the subject note and mortgage be in writing and signed by the parties sought to be
charged thereby. There is no dispute that both the Note and the Mortgage at issue
presently are in writing and signed by Wesley Quinn, in the case of the Note, and by
both Wesley Quinn and Marion Quinn, in the case of the Mortgage.
The Quinns argue for the first time in their Objection to Magistrate’s Decision
that the concept of an “equitable assignment of mortgage” espoused by the Seventh
8
District Court of Appeals in Marcino, cited supra, is in conflict with the Statute of
Frauds. The very premise of this argument is fatally flawed, first, because an
assignment of mortgage does not convey an interest in real estate –an assignment of
mortgage serves a purely administrative function of providing notice to third parties of
the mortgagee of record. Second, Defendants’ argument is fatally flawed for the further
reason that Ohio law does not require that an assignment of a mortgage be made in a
separate written instrument. O.R.C § 5301.28; O.R.C. § 5301.31. Under O.R.C. § 5301.31,
“a mortgage may be assigned or partially released by the holder of the mortgage, by
writing the assignment or partial release on the original mortgage or upon the margin
of the record of the original mortgage and signing it” or “by separate instrument”. And
third, but perhaps most significantly, in this instance, there was a written and executed
Assignment of Mortgage, which was filed for record prior to entry of Judgment and
Decree of Foreclosure to Plaintiff. Accordingly, Plaintiff satisfied every requirement
imposed under Ohio law in bringing and prosecuting the within foreclosure action,
including providing record notice to third parties, by the filing of a proper mortgage
assignment in the Office of the Montgomery County Recorder prior to entry of
judgment.
CONCLUSION
The Magistrate committed plain error when he relied upon the copy of the Note
attached to the Complaint as evidence of when or how the original Note was negotiated
9
and transferred to Plaintiff herein and in disregard of the abundant evidence contained
in the Master Custodial File introduced into evidence through the Affidavit of Bailee
which establishes Plaintiff has owner and holder in due course of the Note and
Mortgage at least as of the date the foreclosure was filed herein. Defendants have no
basis to dispute, and they have not introduced any evidence or testimony to refute,
Plaintiff’s assertion that it was owner and holder of the Note and Mortgage at the time
if filed its foreclosure complaint in November 2007. The incontrovertible evidence and
testimony before this Court is that Plaintiff acquired the Note and Mortgage by
negotiation and transfer in 2006, more than a year before filing its foreclosure complaint
in the within action. As such, Plaintiff was the real party in interest at all times
pertinent.
Wherefore, this Court must reject, in part, the Magistrate’s factual finding that
Plaintiff was not holder in due course of the Note as of 2006. This finding is
contradicted by the evidence before the Court. This Court must find that Plaintiff was
holder of the Note and assignee mortgagee, by virtue of an equitable assignment of
mortgage, at least, as of the date it filed its foreclosure complaint in November 2007,
until the date of the actual assignment of mortgage in January 2008, when it became
mortgagee of record. This Court must adopt the Magistrate’s Decision finding that
Plaintiff has established its standing as real party in interest; and therefore, the Quinns
10
cannot demonstrate a meritorious defense to Plaintiff’s complaint for foreclosure based
upon lack of standing as real party in interest.
Respectfully submitted,
/S/ Deanna C. Stoutenborough
Deanna C. Stoutenborough (# 0069761)
Rick D. DeBlasis, Esq. (# 0012992)
Craig A. Thomas, Esq. (#0037667)
LERNER, SAMPSON & ROTHFUSS
Attorney for Plaintiff
120 E. Fourth St., 8th Floor
Cincinnati, OH 45202
Ph.: (513) 412-6093
Fx.: (513) 362-3592
Deanna.stoutenborough@lsrlaw.com
CERTIFICATE OF SERVICE
I hereby certify that, on March 18, 2010, I electronically filed the foregoing with
the Clerk of the Court using the electronic filing system and have requested the Clerk
to send notification of such filing, via the ECF system, to the following:
Craig A. Thomas, Esq.
P.O. Box 5480
Cincinnati, OH 45201
Co-counsel for Plaintiff
Randall J. Smith, Esq.
Miami Valley Fair Housing Center, Inc.
21-23 E. Babbitt Street
11
Dayton, OH 45405
Counsel for Defendants, Wesley and Marion Quinn
Collette S. Carr, Esq.
301 West Third Street
5th Floor
Dayton, OH 45402
Counsel for Defendant, Montgomery County Treasurer
I hereby further certify that a true and correct copy of the foregoing Motion for
Extension of Time to Object to Magistrate’s Decision was sent via ordinary U.S. mail,
postage prepaid, to the following on the 18th day of March, 2010:
Chase Home Finance
3415 Vision Drive
Columbus, OH 43219
/S/ Deanna C. Stoutenborough
12
Preview
ELECTRONICALLY FILED COURT OF COMMON PLEAS Thursday, March 18, 2010 5:07:54 PM CASE NUMBER: 2007 CV 09571 Docket ID: 14898929 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO COURT OF COMMON PLEAS MONTGOMERY COUNTY, OHIO U.S. Bank, N.A., as Trustee for the Structured Case No. 2007 CV 9571 Asset Securities Corporation Mortgage Loan Trust, 2006- NC1, Judge Connie S. Price Plaintiff, PLAINTIFF’S REPLY BRIEF IN -vs- RESPONSE TO MAGISTRATE’S DECISION FILED FEBRUARY 10, 2010 Wesley A. Quinn, et al., Defendants. The plaintiff herein, U.S. Bank, N.A., as Trustee for the Structured Asset Securities Corporation Mortgage Loan Trust, 2006- NC1 (“Plaintiff”), by and through undersigned counsel, does hereby submit its Reply Brief in Response to the Magistrate’s Decision entered February 10, 2010, pursuant to Civ.R. 53. Plaintiff incorporates herein the Memorandum of Law which follows. Respectfully submitted, LSR # 200725626 /S/ Deanna C. Stoutenborough Deanna C. Stoutenborough (# 0069761) Rick D. DeBlasis, Esq. (# 0012992) Craig A. Thomas, Esq. (#0037667) LERNER, SAMPSON & ROTHFUSS Attorney for Plaintiff 120 E. Fourth St., 8th Floor Cincinnati, OH 45202 Ph.: (513) 412-6093 2 MEMORANDUM Plaintiff and Defendants, Wesley A. Quinn and Marion L. Quinn (“the Quinns”), appear to be in agreement on one point: the Magistrate erred with regard to, both, his factual findings and conclusions of law on the issue of Plaintiff’s standing and status as holder in due course. Plaintiff agrees with the Quinns that the Magistrate committed plain error in finding that Plaintiff was a “nonholder in possession” of the Note; but this is the sole point on which these parties agree. Plaintiff urges this Court to adopt the Magistrate’s ultimate conclusion that Plaintiff established its standing as real party in interest in this mortgage foreclosure action. The Magistrate’s finding that Plaintiff was a nonholder in possession of the Note is patently contrary to the evidence and testimony introduced by Plaintiff, including the Affidavit of Bailee of Records Custodian, the Notice of Filing Note with Endorsement, Notice of Filing Assignment of Mortgage, and the various trust documents introduced and considered by the Magistrate. The Master Custodial File contains, among other original documents and records, the original Note bearing the endorsement executed in blank by Steve Nagy as VP of Loan Documentation of New Century Mortgage Corp.; the original Mortgage executed by the Quinns; the Corporation Assignment of Mortgage dated March 3, 2006 and executed in blank by New Century Mortgage Corporation; and chain of custody records. In particular, though not exclusively, the chain of custody records that constitute part of the Master Custodial File and that were 3 introduced as evidence to the Court pursuant to the Affidavit of Bailee of Master Custodial File, is incontrovertible evidence that Deutsche Bank National Trust Company was in possession of the original Note and Mortgage and other original loan documents, as Custodian for Plaintiff, at least as of October 2006. Plaintiff has since proffered the Affidavit of Mark J. Kelly, Vice President of Deutsche Bank National Trust Company as Custodian for Plaintiff, which this Court should consider. In said affidavit, the Custodian for Plaintiff avers under penalty of perjury that Deutsche Bank National Trust Company as Custodian for Plaintiff received custody and possession of the original Custodial File containing, among other original loan documents, the Note given by Defendant herein, Wesley Quinn, bearing the blank endorsement of New Century Mortgage Corporation, and the Mortgage executed and delivered by the Quinns, on or about June 1, 2006. But even without this Affidavit, the incontrovertible evidence and testimony before the Court at the time the Magistrate rendered his Magistrate’ Decision was that Plaintiff was owner and holder of the Note and the Mortgage given by the Quinns in exchange for the loan they obtained from New Century Mortgage Corporation, as a result of negotiation and transfer of the Note and equitable assignment of the Mortgage. The Magistrate’s finding that the Note was not negotiated and transferred to Plaintiff until after Plaintiff filed its Complaint in November 2007 was made in utter disregard of the facts and evidence before him. But moreover, it is contrary to the law 4 in Ohio. For more than a century, the law in Ohio has been, and continues to be, that an instrument given to secure an obligation evidenced by a promissory note is merely incidental to the note it was given to secure. Furthermore, creation and transfer of interests in and to negotiable instruments, such as promissory notes, is governed exclusively by Article 3 of the Uniform Commercial Code codified in Ohio law in Title 13, Chapter 3 of the Ohio Revised Code. Thus, sale and transfer of possession, alone is sufficient to convey unto Plaintiff the rights of a holder as of the date of sale and transfer. O.R.C. § 1303.22. Section 1303.22 provide, in pertinent part, as follows: A) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. (B) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, [ . . . ] (C) Unless otherwise agreed, if an instrument is transferred for value the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made by the transferor. (Emphasis added.) O.R.C. § 1303.22(A), (B), and (C). With or without an actual endorsement or allonge, Plaintiff became holder of the Note and Mortgage upon transfer of the Note by New Century Mortgage Corp in 2006. In this instance, though, a negotiation of the Note also occurred. The irrefutable evidence and testimony entered as part of the record of these proceedings is that New Century 5 Mortgage Corporation affixed its blank endorsement on the Note and then transferred the Note with endorsement. Upon the negotiation and transfer of the Note, the transferee, Plaintiff, succeeded to all the rights of the transferor, including the rights of holder in due course. O.R.C. § 1303.32. A holder in due course of a promissory note is one who gave value in good faith to acquire the instrument and who took the instrument without facial evidence of forgery and without notice that the instrument is overdue or has been dishonored, or contains an unauthorized signature or has been altered and without notice that any party has a defense or claim in recoupment described in division (A) of section 1303.35 of the Revised Code. O.R.C. § 1303.32(A)(2)(a) through (f). Plaintiff herein paid valuable consideration to acquire and did take the Note given by Defendant, Wesley Quinn, in good faith in 2006 when the Note was not in default, or without notice of any default. As the Quinns have never asserted forgery, alteration, or any defense or claim in recoupment, all the requisite elements for a finding that Plaintiff was a holder in due course when it acquired the Note in 2006 have been satisfied. Consequently, the Magistrate plainly erred in finding that Plaintiff was a “nonholder in possession” when it filed its Complaint for Foreclosure in November 2007. As Plaintiff was a holder in due course on the date it filed its foreclosure complaint, Plaintiff was lawfully entitled to bring this action to enforce the mortgage 6 through foreclosure. Sale, transfer, and negotiation of the Note effected a transfer of the Mortgage, by operation of law, even without a recorded assignment. Edgar v. Haines (1923), 109 Ohio St. 159, 141 N.E. 837. It is axiomatic in Ohio law that the negotiation of the note results in a corresponding transfer of the mortgage by operation of law, without the necessity of a separate assignment of the mortgage. Kuck v. Sommers (1950), 59 Ohio Law Abs. 400, 100 N.E.2d 68; Kelly v. Tracy & Avery Co. (1905), 71 Ohio St. 220, 232-233; Kernohan v. Manss (1895), 53 Ohio St. 118, 41 N.E. 258; Holmes v. Gardner (1893), 50 Ohio St. 167, 33 N.E. 644; 69 Ohio Jur. 3d Mortgages § 461 (February 2008). See also, The Bank of New York as Trustee v. Dobbs, Knox County, App. No. 2009-CA-000002, ¶29, 2009- Ohio-4742; LaSalle Bank National Association v. Street, Licking App. No. 08CA60, 2009- Ohio-1855; Deutsche Bank National Trust Co. v. Pagani, Knox County App. No. 09-CA- 000013, 2009-Ohio-5665; U.S. Bank v. Marcino, 181 Ohio.App.3d 328. No mortgage assignment, recorded or unrecorded, was needed since the mortgage transferred to Plaintiff by virtue of an equitable assignment. Id. As the current holder of the note and mortgage at issue Plaintiff was the real party in interest with standing to bring the within action at the time if filed the foreclosure complaint herein. Wells Fargo Bank, N.A. v. Stovall, Cuyahoga App. No. 91802, 2010-Ohio-236 ¶15; Marcino, supra; First Union Natl. Bank v. Hufford (2001) 146 Ohio App.3d 673, 677; Shealy v. Campbell (1985), 20 Ohio St.3d 23, 24. Pursuant to Civ.R. 17(A), the real party of interest shall 'prosecute' the claim. Civ.R. 17(A); Wells Fargo Bank, 7 N.A. v. Stovall, supra, Wachovia Bank, N.A. v. Cipriano, Guernsey App.No. 09CA007, 2009- Ohio-5470, ¶ 38; LaSalle Bank Natl. Assn. v. Street, supra. The recording of the assignment of mortgage is not determinative of Plaintiff’s standing as real party in interest. U.S. Bank National Association v. Bayless, Delaware App. No. 09 CAE 01 004, 2009 Ohio 6115 ¶22 and 23; Wachovia Bank, N.A. v. Cipriano, Guernsey App. No. 09CA007, 2009 Ohio 5470, ¶38; The Bank of New York as Trustee v. Dobbs, supra; LaSalle National Association v. Street, supra. Filing the assignment with the trial court within a reasonable time after the foreclosure complaint is filed, but before judgment is entered, is sufficient to satisfy the requirement of Civ.R.17(A). See, Bayless, supra; Cipriano, supra; Stovall, supra; Dobbs, supra; Bank of New York v. Stuart, Lorain App. No. 04-CA-008953, 2007-Ohio-1483 ¶12. The statute of frauds, O.R.C. § 1335.05, does not disturb any of the long-standing and binding precedent set forth in the legal argument above. In fact, the statute of frauds is wholly inapposite here. The statute of frauds, R.C. 1335.05, requires merely that the subject note and mortgage be in writing and signed by the parties sought to be charged thereby. There is no dispute that both the Note and the Mortgage at issue presently are in writing and signed by Wesley Quinn, in the case of the Note, and by both Wesley Quinn and Marion Quinn, in the case of the Mortgage. The Quinns argue for the first time in their Objection to Magistrate’s Decision that the concept of an “equitable assignment of mortgage” espoused by the Seventh 8 District Court of Appeals in Marcino, cited supra, is in conflict with the Statute of Frauds. The very premise of this argument is fatally flawed, first, because an assignment of mortgage does not convey an interest in real estate –an assignment of mortgage serves a purely administrative function of providing notice to third parties of the mortgagee of record. Second, Defendants’ argument is fatally flawed for the further reason that Ohio law does not require that an assignment of a mortgage be made in a separate written instrument. O.R.C § 5301.28; O.R.C. § 5301.31. Under O.R.C. § 5301.31, “a mortgage may be assigned or partially released by the holder of the mortgage, by writing the assignment or partial release on the original mortgage or upon the margin of the record of the original mortgage and signing it” or “by separate instrument”. And third, but perhaps most significantly, in this instance, there was a written and executed Assignment of Mortgage, which was filed for record prior to entry of Judgment and Decree of Foreclosure to Plaintiff. Accordingly, Plaintiff satisfied every requirement imposed under Ohio law in bringing and prosecuting the within foreclosure action, including providing record notice to third parties, by the filing of a proper mortgage assignment in the Office of the Montgomery County Recorder prior to entry of judgment. CONCLUSION The Magistrate committed plain error when he relied upon the copy of the Note attached to the Complaint as evidence of when or how the original Note was negotiated 9 and transferred to Plaintiff herein and in disregard of the abundant evidence contained in the Master Custodial File introduced into evidence through the Affidavit of Bailee which establishes Plaintiff has owner and holder in due course of the Note and Mortgage at least as of the date the foreclosure was filed herein. Defendants have no basis to dispute, and they have not introduced any evidence or testimony to refute, Plaintiff’s assertion that it was owner and holder of the Note and Mortgage at the time if filed its foreclosure complaint in November 2007. The incontrovertible evidence and testimony before this Court is that Plaintiff acquired the Note and Mortgage by negotiation and transfer in 2006, more than a year before filing its foreclosure complaint in the within action. As such, Plaintiff was the real party in interest at all times pertinent. Wherefore, this Court must reject, in part, the Magistrate’s factual finding that Plaintiff was not holder in due course of the Note as of 2006. This finding is contradicted by the evidence before the Court. This Court must find that Plaintiff was holder of the Note and assignee mortgagee, by virtue of an equitable assignment of mortgage, at least, as of the date it filed its foreclosure complaint in November 2007, until the date of the actual assignment of mortgage in January 2008, when it became mortgagee of record. This Court must adopt the Magistrate’s Decision finding that Plaintiff has established its standing as real party in interest; and therefore, the Quinns 10 cannot demonstrate a meritorious defense to Plaintiff’s complaint for foreclosure based upon lack of standing as real party in interest. Respectfully submitted, /S/ Deanna C. Stoutenborough Deanna C. Stoutenborough (# 0069761) Rick D. DeBlasis, Esq. (# 0012992) Craig A. Thomas, Esq. (#0037667) LERNER, SAMPSON & ROTHFUSS Attorney for Plaintiff 120 E. Fourth St., 8th Floor Cincinnati, OH 45202 Ph.: (513) 412-6093 Fx.: (513) 362-3592 Deanna.stoutenborough@lsrlaw.com CERTIFICATE OF SERVICE I hereby certify that, on March 18, 2010, I electronically filed the foregoing with the Clerk of the Court using the electronic filing system and have requested the Clerk to send notification of such filing, via the ECF system, to the following: Craig A. Thomas, Esq. P.O. Box 5480 Cincinnati, OH 45201 Co-counsel for Plaintiff Randall J. Smith, Esq. Miami Valley Fair Housing Center, Inc. 21-23 E. Babbitt Street 11 Dayton, OH 45405 Counsel for Defendants, Wesley and Marion Quinn Collette S. Carr, Esq. 301 West Third Street 5th Floor Dayton, OH 45402 Counsel for Defendant, Montgomery County Treasurer I hereby further certify that a true and correct copy of the foregoing Motion for Extension of Time to Object to Magistrate’s Decision was sent via ordinary U.S. mail, postage prepaid, to the following on the 18th day of March, 2010: Chase Home Finance 3415 Vision Drive Columbus, OH 43219 /S/ Deanna C. Stoutenborough 12