As previously discussed, Ohio Attorney General Marc Dann filed motions in seven Hamilton County cases - and several more in Butler, Montgomery, Franklin and Delaware counties seeking to delay or void foreclosure actions.

However, in  Deutsche Bank Nat'l Trust v Telisa Barnes and State of Ohio (Hamilton Cty CP No A0705631), Common Pleas Court Magistrate Michael Bachman rejected Dann's arguments that Deutsche Bank was not a "real party in interest" because it didn't own the mortgage paper when it filed its case.

He further said Dann was acting against the interests of his clients - the taxpayers of Ohio - by moving to dismiss foreclosure cases in which the state has liens against the properties.   Because it's the attorney general's duty to collect on those liens, the magistrate said Dann has an "obvious express conflict of interest.

The State of Ohio was named as a Defendant in the foreclosure action filed by Deutsch Bank because the State had an interest in Barnes put the house up as part of a $20,000 bond in an aggravated menacing case.
 
Attorney General Marc Dann's argument was analogous to the one in Cuyahoga Cty; that Deutsche Bank did not own the mortgage paper at the time it filed the case and therefore had no standing. The court disagreed, observing that longstanding Ohio case law holds that an unrecorded mortgage is valid between the parties and for all others is effective from the time it is left to be recorded.  The court noted further that "Ohio case law and statutory authority do not require the recording of a mortgage as a condition precedent to enforcement between the parties." 
 
The court discussed the impact of recording the mortgage to be primarily for placing prospective bona fide purchasers on notice of the lien, and being necessary to establish the priority of additional lien holders.  Finally, the decision stated that "only when the real property is set for sale does the recording of the mortgage assignment become necessary to insure clear title to prospective buyers at the subsequent judicial sale.
 
In its conclusion, the court scolded the Attorney General for using the Hamilton County Common Please Court as a forum to raise a public policy issue.  While respecting both the State and US Constitutions' guarantee to the people of a right to petition their governments for redress of their grievances, the judge specifically noted that the Ohio State Assembly and The Supreme Court of Ohio are more appropriate forums for this debate.

To view local media coverage,including the response by the Attorney General's office, please click here.

To view a copy of the ruling, please click here.

About Safeguard
Safeguard Properties is the largest privately held field services company in the country. Located in Cleveland, OH  and founded in 1990 by Robert Klein, Safeguard has grown from a regional preservation company with a few employees and a handful of contractors performing services in the Midwest, to a national company with over 450 employees.  Safeguard is supported by a nationwide network of subcontractors able to perform any requested superintendence, preservation, and maintenance functions, as well as numerous ancillary services in the U.S., the Virgin Islands, and Puerto Rico.