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Elesh v. Mortgage Electronic Registration Systems, Inc.

United States District Court, N.D. Illinois, Eastern Division

August 5, 2014



MATTHEW F. KENNELLY, District Judge.

Herbert Elesh has sued Mortgage Electronic Registration Systems, Inc. (MERS) and Deutsche Bank National Trust Co. After the Court's ruling on defendants' earlier motion to dismiss, see Elesh v. Mortg. Elec. Registration Sys., Inc., No. 12 C 10355, 2013 WL 4476547 (N.D. Ill. Aug. 16, 2013), Elesh's single remaining claim against the defendants is a state law quiet title claim. Defendants have moved for summary judgment. For the reasons stated below, the Court grants defendants' motion.


On March 4, 2005, Elesh executed a mortgage on a home in Arlington Heights, Illinois. The mortgage secured a promissory note for $147, 000, payable to Decision One Mortgage Company. The mortgage document said that Elesh "does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, " the property in question. Mortgage, p. 2. MERS, as nominee for Decision One Mortgage, then assigned the mortgage to Deutsche Bank as trustee. The assignment was entered into "as of" September 1, 2010, but it was signed or "acknowledged" by MERS on January 12, 2011. Am. Compl., Ex. B.

Ocwen Loan Servicing prepared the assignment of mortgage in its capacity as servicer of Elesh's loan and attorney-in-fact (agent) for Deutsche Bank. Defs.' R. 56.1 Stat. ¶4; Pl.'s Resp. to Defs.' R. 56.1 Stat. ¶ 4. Christina Carter, an employee of Ocwen, was appointed by MERS as a "signing officer." Defs.' R. 56.1 Stat. ¶¶ 6-7; Pl.'s Resp. to Defs.' R. 56.1 Stat. ¶¶ 6-7. She regularly executed assignments on behalf of MERS. Defs.' R. 56.1 Stat. ¶ 9; Pl.'s Resp. to Defs.' R. 56.1 Stat. ¶ 9.

Deutsche Bank filed a mortgage foreclosure suit against Elesh in May 2012. In September 2012, Elesh filed a motion to dismiss and a counterclaim disputing the validity of the mortgage assignment. Judge Guzman dismissed Deutsche Bank's foreclosure suit on May 21, 2013 for lack of subject matter jurisdiction. Deutsche Bank Nat'l Trust Co. v. Elesh, No. 12 C 3644, 2013 WL 2242452 (N.D. Ill. May 21, 2013). Judge Guzman ruled that Deutsche Bank had failed to show that it owned the promissory note or even that the note it offered was authentic (the witness Deutsche Bank presented had no personal knowledge of any of the matters on which the witness was called to testify). Id. at *1. Judge Guzman therefore dismissed Deutsche Bank's suit for lack of standing. Id.

In November 2012, Elesh filed the present suit against MERS in state court. He sought to quiet title on the Arlington Heights property. Specifically, he requested a finding that the mortgage and assignment were void or invalid. In December 2012, MERS removed the case to federal court and filed a motion to dismiss. The Court ruled that Deutsche Bank was a necessary party. In June 2013, Elesh filed an amended complaint naming Deutsche Bank as an additional defendant. Deutsche Bank adopted MERS's motion to dismiss. Id.

Elesh's amended complaint includes five claims, in each of which he contended the mortgage was void or invalid. The Court dismissed four of the claims-attacking the mortgage itself-for failure to state a claim. Elesh, 2013 WL 4476547, at *3. Elesh's only remaining claim is Count 5, a quiet title claim in which he challenges the assignment of the mortgage to Deutsche Bank. The Court found that Elesh had standing to challenge the mortgage assignment and therefore allowed that claim to proceed. Id. at *3-4.


MERS and Deutsche Bank have moved for summary judgment. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Court views the evidence in the light most favorable to the non-moving party. Id. To avoid summary judgment, the opposing party must "point to evidence that can be put in an admissible form at trial, and that, if believed by the fact-finder, could support judgment in his favor." Marr v. Bank of America, N.A., 662 F.3d 963, 966 (7th Cir. 2011). See also, Smiley v. Columbia Coll. Chicago, 714 F.3d 998, 1004 (7th Cir. 2013) (testimony offered in affidavit form on summary judgment motion must be admissible to be considered).

As indicated earlier, Count 5 is a claim to quiet title. An action to quiet title is a proceeding in which a party seeks to remove a cloud on his title to real property. Gambino v. Boulevard Mortg. Corp., 398 Ill.App.3d. 21, 52, 922 N.E.2d 380, 410 (2009). A could on title is the semblance of title that appears in some legal form but that is actually unfounded or would be inequitable to enforce. Id.

In Count 5, Elesh alleges that the assignment of the mortgage to Deutsche Bank is void or was never valid because Christina Carter, the designated signer, did not actually sign the assignment; Elesh contends her signature was forged. Elesh also alleges that the purported drafter of the assignment, Cory Messer, listed a Florida attorney code number that was actually assigned to another person, who died in 2009.

Defendants argue that Elesh cannot prove that the assignment of mortgage is fraudulent. They have submitted an affidavit from Christina Carter in which she verifies the signature on the assignment is hers, though she does not specifically recall signing this particular assignment. With regard to the attorney code issue, defendants have submitted an affidavit from Rashad Blanchard, who notarized Carter's signature. Besides attesting that he recognizes the signature as Carter's, Blanchard states that "attorney code 14946" is an internal Ocwen number used to designate the firm that was to ...

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