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Deutsche Bank v. Tucker et al

July 12, 2012

DEUTSCHE BANK
v.
TUCKER ET AL



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Virginia M. Kendall than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Defendants' motion to dismiss is denied.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2006-NLC1, Asset Backed Certificates, Series 2006-NLC1, brings suit against Defendants Patricia and Theodore Tucker to foreclose a mortgage on Defendants' residence. Defendants filed this Motion to Dismiss Plaintiff's Complaint for lack of standing under Federal Rule of Civil Procedure 12(b)(1). For the following reasons, the Defendants' Motion to Dismiss is denied.

I. Background

This is the second motion the Defendants have filed on substantially similar grounds in response to the Plaintiff's effort to foreclose on their mortgage. In the instant Motion, Defendants again argue that the materials supporting the Plaintiff's Complaint, even if assumed to be valid, do not establish Plaintiff's standing to pursue its foreclosure action.

On March 23, 2012, this Court concluded that the Plaintiff met its burden to plead that it owned the Defendants' mortgage upon filing its initial foreclosure Complaint. However, because the Plaintiff failed to establish that it owned the Note that accompanied the mortgage attached to its Complaint, this Court granted the Defendants' initial 12(b)(1) motion. In so doing, this Court provided the Plaintiff an opportunity to file an amended Complaint to demonstrate that the Plaintiff is legally entitled to enforce the Note.

On March 28, 2012, the Plaintiff filed an Amended Complaint. The only modification to the initial Complaint is the attachment of a new copy of the Note in question. The copy of the Note attached to the Amended Complaint includes an Allonge dated February 15, 2012, representing the negotiation of the Note from the original lender, First NLC Financial Services, LLC, to the Plaintiff.

II. The Standard of Review

"Standing is an essential component of Article III's case-or-controversy requirement." Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)). Where a plaintiff fails to assert standing, "relief from [the] court is not possible, and dismissal under 12(b)(1) is the appropriate disposition." Am. Fed'n of Gov't Employees, Local 2119 v. Cohen, 171 F.3d 460, 465 (7th Cir. 1999) (internal citation omitted). Thus, in response to a 12(b)(1) motion, the burden falls on the Plaintiff to assert standing to accommodate the Court's subject matter jurisdiction. See United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003) (internal citation omitted).

In assessing a facial standing challenge at the pleadings stage, the Court looks no further than the allegations in the complaint and accepts all such allegations as true. See Apex Digital, Inc., 572 F.3d at 443-445. The Court may consider exhibits attached to the Complaint when evaluating the Motion by taking judicial notice of them without converting the motion to dismiss into a motion for summary judgment. See Fed. R. Civ. Pro. 10(c). However, where the defendant raises a question of fact regarding the plaintiff's assertion of standing, the plaintiff must establish jurisdiction by a preponderance of the evidence or "proof to a reasonable probability." NFIC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir.1995) (citing Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir.1993)).

Here, the Defendants challenge both the legal grounds on which the Plaintiff asserts standing, as well as the factual basis of the Plaintiff's Complaint. First, taking the Plaintiff's evidence as true, the Defendants argue that the Plaintiff was not the legal holder of the Note when it filed its Complaint and therefore lacked standing to bring its foreclosure action. Second, the Defendants argue that the Plaintiff's proffered evidence does not demonstrate that it received the Note from ...


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