Monday, August 13, 2007

The Jonah Error (July 24, 2007)

The book of Jonah is unique in that it deals with man’s reluctance to obedience and also the reluctant’s obedience. Jonah as a prophet was sent to Nineveh which was a city destined for destruction. They were given 40 days warning. All the people repented and God changed His mind. Does that make Jonah a false prophet? Does it make God a liar? From our perspective this would be true. Knowing the facts of the whole record it is discovered that God changed His mind. Jonah’s error was that he presumed he understood God’s mind and His workings.

I bring this up as a review of our Christmas prophecy. Can you who think we are hearing things be certain God did not have another agenda besides your small imagination that if it was God we would be out? As I look at what God did in the Jonah story it is clear that there was much more in play. Nineveh was doomed to destruction absolutely. The fact that God changed His mind about the time did not mean He changed His mind absolutely. These contrite citizens eventually bred the evil children that would persecute and remove the Northern Tribes of Israel. Do you think God did not know this would happen? How about Jonah himself? God was teaching him a truth he lacked. He understood that God was rich in mercy but he didn’t understand his sovereign power and notice. At the end of the book God uses a bush and a worm to teach this. God is the God of the comforting bush and the destructive worm. It is a simple lesson of Lordship. Jonah’s rebellion is evidence he was lacking in this department. What if God was simply using the Assyrians for Jonah’s sake and not really using them as His primary focus. Yes they repented and God benefited but it could have been a situation of killing two birds with one stone.

When I got the prophecy I was immediately challenged in my faith to hold on to the promise. If you say I was delusional and desperate because of my desire and circumstance than you are not seasoned in faith battles and speak from ignorance. I am not claiming faultlessness as a character trait but when God has finished a work wisdom is much more certain. God was setting me up to see if I would have a Jonah response, which is comical. “I’m angry enough to die.” I think we’ve all been there before. I am telling you this in hopes that as the suffering continues that you will see beyond your understanding that God is the Lord in control of the comfort and the worm. By forcing me to place my hopes upon the prophecy I was trapped under the bush of comfort that was destined to be eaten by the worm. Would I love the comfort more than God? If He gave the comfort is He not free to take it away? When He took it away I was faced with the angry response of Jonah tempting my heart. What was great was that God helped me find the true comfort of the whole exercise by turning my eyes to see the ram in the Abraham-Isaac sacrifice story. I was able to see God was up to something bigger and that by not blaming God for the loss of a small comfort I gained the knowledge of the worm which allowed me to find the ultimate comfort of knowing God was in charge. There is no shade in the blazing sun that can whet a man’s soul as much as knowing that God controls the sun.

Again this proves that even when you are forced to eat worms God has good plans for you. Don’t be discouraged and continue to look to the Lord as your provider. This is not just the provider of a house, family, or money but a provider of all things holy. Understanding and wisdom come from God and make our lives better. He uses worms to give this to us a lot of times. There are many confirmations of this truth in the Jonah story. Please go read it if you haven’t in a while. One thing I take comfort in is that the worm was at the end of the story. Now I don’t have an absolute but I have a “close” resounding throughout my spirit. One thing for sure is “I’m angry enough to die” is pervading my enemy and all we are doing is remaining calm and staying focused upon the truth. Jonah was an insignificant prophet with a little ministry but in the end was spoken of by Christ as the only sign given to verify His divinity. Just perhaps insignificant trustees and beneficiaries can make a world of impact that are a sign of Christ’s divinity. I’m up for the call worms and all, how about you?

3 comments:

mogel said...

"The fact that God changed His mind about the time did not mean He changed His mind absolutely."
_________________________________

I'm reminded of the story of a King Hezekiah in the Old Testament that loved life so much he asked the Lord that his days would be LENGTHENED here on earth during a sickness & was even told by the prophet Isaiah, that he was about to die & to get his house in order (II Kings 20: 1) since it was his time: II Kings 20:1-6

God didn't change his decree of death for him, but did change his fate and did allow him 15 MORE YEARS (VS. 6) according to his righteous desire & his righteous life and LENGTHENED his predetermined number of years to live in the flesh in this mortal life.

We all have a predetermined time to live and die set by God himself, & even where we are born is also set, which is a New Testament doctrine that the "times" and "bounds" are predetermined: (Acts 17:26) God is more in control than most realize or have even considered. His very "light" (verse 28) is the life force that enables us to live. Take that away and we're dead. Being the Spirit offspring of God (vs. 29) he has a keen interest in all of us, since He is literally our Father. "Father does know best." It's not just the name of an old TV show.

Likewise even those "sons of perdition" were also preknown to God & ordained to their condemnation: (Jude vs. 4)
He seems to be in charge of even the MOST vile of sinners & knew of their eventual fate too. His foreknowledge & omnipotence is essential to accept in order to begin to have faith in Him & his words. He knows all things which means he knows the beginning to the end of all things even before things happen. Some have confused God's foreknowledge of all things with predestination. Those are two different things.

The conclusion on how things turn out with the Dorean Group saga is set, the time frame how this is accomplished is a flexible commodity, and since "time is measured only unto man", and since God being an "eternal being with an eternal perspective, He is not all that concerned with time, the time frame is not the paramount issue anyway. For "one day in God's time is reckoned to be 1000 years with man". See II Peter 3: 8
So according to God's time of reckoning, how long does man really suffer? How long did it really take to cancel a mortgage & have this fully recognized? So when God said he created the world in 6 days & rested on the 7th, it took him 6,000 years to accomplish everything.
The God "that cannot lie", even promised "eternal life" before the world began:
Titus 1: 2

"Our salvation is made perfect through suffering"
Hebrews 2: 10

justice7777777 said...

sounds like the crickets are making more noise on this blog than anyone else these days.....

mogel said...

Quiet? Can't you hear the tune of a victory dance? I can.

Here is a MAJOR court victory in the State of Ohio last month for the good guys against the Banksters.

The major issue of this case is the case cannot be prosecuted without the original promissory note and cannot be transferred to another party for enforcement, and as all promissory notes are sold, this case should settle the issue permanently.

As the parties suing have no standing whatsoever, they are irrelevant. So nothing they do even counts, even if they are right on some issues.

Another gem to come out of this court battle, little noticed, is that the servicer, MERS (a huge lying organization) produced a sworn affidavit from the (woman) manager saying that they had the note, BUT with no assignment documentation attached. BIG!!

She didnt even know what she was doing or signed for. She could be liable for personal damages or perjury itself.....

I think that the defendants let go of the bankruptcy case because they already knew that once it was decided that the lender had no legal standing, then whether or not to plead to the bankruptcy then became a very moot point. Here you go. Enjoy.........................
__________________________________
Westlaw Download Summary Report United States Bankruptcy Court,
N.D. Ohio,
Eastern Division.
In re Rodger Price SAFFOLD, II, Debtor.
No. 07-11006.
July 30, 2007.
Background: Mortgage company moved to dismiss
debtor's fourth bankruptcy filing and for sanctions
in the form of in rem relief or a bar against re-filing
based upon the repeated filings. Although debtor
consented to dismissal, he objected to sanctions request.
Holdings: The Bankruptcy Court, Pat E. Morgenstern-
Clarren , J., held that:
(1) company lacked Article III standing to seek requested
sanctions;
(2) company did not satisfy jurisprudential limitations
on standing; and
(3) company lacked standing to move to substitute
another non-party entity as movant.
Motion for sanctions denied.
[1] Bankruptcy 0
51k0 k.
Motion to dismiss for lack of standing questions
whether the court has subject matter jurisdiction.
Fed.Rules Bankr.Proc.Rules 7012, 9014(c), 11
U.S.C.A.; Fed.Rules Civ.Proc.Rule 12(b)(1), 28
U.S.C.A.
[2] Bankruptcy 0
51k0 k.
Issue of standing can be raised at any time, and is
not subject to waiver. Fed.Rules Bankr.Proc.Rules
7012, 9014(c), 11 U.S.C.A.; Fed.Rules
Civ.Proc.Rule 12(h)(3), 28 U.S.C.A.
[3] Bankruptcy 0
51k0 k.
Challenge to standing may be either a facial attack
on a pleading or a factual attack.
[4] Bankruptcy 0
51k0 k.
When a party raises a factual attack on the existence
of standing, court has discretion to permit the
parties to submit affidavits and documents showing
the jurisdictional facts.
[5] Bankruptcy 0
51k0 k.
Party invoking federal court jurisdiction has the
burden of proof on issue of standing.
[6] Bankruptcy 0
51k0 k.
Overall standing question is whether a litigant is
entitled to have the court decide the merits of the
dispute or of particular issues.
[7] Bankruptcy 0
51k0 k.
There are two aspects to the standing doctrine: a
constitutional limitation and a jurisprudential limitation.
[8] Bankruptcy 0
51k0 k.
To establish the irreducible constitutional minimum
for standing, a party must show three things: (1) an
injury in fact that is concrete and particularized, (2)
a connection between the injury and the conduct at
issue, such that the injury is fairly traceable to defendant's
actions, and (3) a likelihood that the injury
would be redressed by a favorable decision of
the court. U.S.C.A.Const.Art. 3, § 2, cl. 1.
[9] Bankruptcy 0
51k0 k.
Plaintiff who meets requirements for constitutional
standing is still subject to the jurisprudential limitations
on standing, which require plaintiff to show
that (1) he is asserting his own legal rights, as opposed
to the legal rights of others, (2) the issue
raised is not an abstract question of wide public significance
which is better addressed by the legislat-
2007 WL 2230194 Page 1
--- B.R. ----, 2007 WL 2230194 (Bankr.N.D.Ohio)
(Cite as: 2007 WL 2230194 (Bankr.N.D.Ohio))
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
ive branch, and (3) his claim is within the zone of
interest to be protected by the pertinent statute.
[10] Bankruptcy 0
51k0 k.
In the bankruptcy context, the zone of interest inquiry
under jurisprudential limitations on standing
is whether the Bankruptcy Code can be properly
understood as granting plaintiff the right to seek judicial
relief for the alleged impropriety.
[11] Bankruptcy 0
51k0 k.
Mortgage company, which had previously sold its
interest in debtor's note and mortgage, would not
suffer personal injury if debtor filed another bankruptcy
case which included mortgaged property,
and would not be helped by favorable decision by
bankruptcy court on its motion seeking sanctions in
debtor's fourth bankruptcy case, such as in rem relief
or bar against re-filing, and therefore company
lacked Article III standing to seek requested sanctions.
U.S.C.A.Const.Art. 3, § 2, cl. 1.
[12] Contracts 0
95k0 k.
Under Ohio law, the transfer of an instrument vests
in the transferee any right of the transferor to enforce
the instrument.
[13] Bankruptcy 0
51k0 k.
Mortgage company that sold its interest in debtor's
note and mortgage before debtor filed his fourth
bankruptcy petition did not satisfy jurisprudential
limitations on standing, and thus could not move
for sanctions against debtor, inasmuch as company,
which had no right to payment from debtor and lacked
interest that would be affected by another petition
filing, was not asserting its own rights and did not
fall within zone of interest protected by bankruptcy
statutes providing that case dismissal did not bar
later discharge of debt that was dischargeable in
dismissed case and that, under certain circumstances,
individual who had case pending could not
file petition for 180 days after dismissal of pending
case. 11 U.S.C.A. §§ 101(5), 101(12), 109(g),
349(a).
[14] Corporations 0
101k0 k.
Under Ohio law, mortgage company ceased to exist
as a separate legal entity when it was merged into
another entity, and that entity ceased to exist when
it was merged into financial institution.
[15] Bankruptcy 0
51k0 k.
Judgment against debtor in its name did not give
mortgage company standing to prosecute motion
for sanctions against debtor when, under state law,
company had ceased to exist due to mergers.
[16] Bankruptcy 0
51k0 k.
Mortgage company that sold its interest in debtor's
note and mortgage before debtor filed his fourth
bankruptcy petition lacked standing to move to substitute
another non-party entity as movant for company's
motion for sanctions against debtor.
Fed.Rules Bankr.Proc.Rules 7017, 9014(c), 11
U.S.C.A.; Fed.Rules Civ.Proc.Rule 17(a), 28
U.S.C.A.
[17] Bankruptcy 0
51k0 k.
Party that lacks standing to prosecute an action also
lacks standing to make a motion to substitute.
Fed.Rules Civ.Proc.Rule 17, 28 U.S.C.A.
Stephen D. Hobt, Cleveland, OH, for Debtor.
MEMORANDUM OF OPINION
PAT E. MORGENSTERN-CLARREN, United
States Bankruptcy Judge.
*1 This is the debtor Rodger Saffold's fourth bankruptcy
filing in almost ten years. Leader Mortgage
Co. filed a motion to dismiss the case and for sanctions
in the form of in rem relief or a bar against refiling
based on the repeat filings. [FN1] The debtor
consented to dismissal, but objected to the sanction
request.
The court held an evidentiary hearing on the sanc-
2007 WL 2230194 Page 2
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tion issue, only. At that hearing, the debtor defended
the motion on the merits and also argued that
there is no subject matter jurisdiction because
Leader lacks standing to raise this issue, having
sold the note and mortgage in question years ago.
Leader defended its standing and moved, alternatively,
to substitute an unrelated entity as the
movant. For the reasons set forth below, the court
finds that Leader does not have standing to prosecute
either the motion for sanctions or the motion to
substitute, and the motions are denied on that basis.
JURISDICTION
The court has jurisdiction over the debtor's underlying
chapter 13 case under 28 U.S.C. § 1334 and
General Order No. 84 entered by the United States
District Court for the Northern District of Ohio.
FACTS [FN2]
I.
The facts in this case illustrate a problem arising
out of dramatic changes that have taken place in the
home lending industry over the past few decades.
To state it simply, historically an individual would
approach a local lender asking to borrow money to
buy a house. The lender would provide the needed
funds, with the borrower signing a note secured by
a mortgage on the residence. The lender would own
the note and mortgage throughout the note's term
and the borrower would repay the money to the
lender. When the note was paid in full, the lender
would release the mortgage. Over time, the practice
evolved to the situation we find today, where a loan
is commonly closed and sold to a third-party on the
same day, followed by unlimited sales and assignments
of the note and mortgage, multiple changes
in the entity servicing the loan (i.e., the entity authorized
to collect note payments), or both. The frequent
byproduct is confusion on the part of a borrower
over who owns his note and mortgage and
also over who is servicing the note. This case
shows that the confusion can also extend to a
lender.
II.
In 1989, the debtor Rodger Saffold and his former
wife borrowed money from Mortgage Executives,
Inc. to purchase a home. They signed a note secured
by a mortgage on the property. [FN3] That
same day, Mortgage Executives, Inc. assigned the
note and mortgage to Leader Mortgage Co.
(Leader). [FN4]
When the borrowers defaulted on the note, Leader
filed a state court complaint for money judgment
and foreclosure against Rodger Saffold, among others.
[FN5] The court entered judgment in favor of
Leader on August 29, 1997. [FN6] The property
was set for a sheriff's sale on November 17, 1997.
[FN7] The debtor filed his first bankruptcy case a
few days before that sale to stop it from going forward.
[FN8]
*2 On November 18, 1997, Leader assigned the
note and mortgage to Harbor Financial Mortgage
Corporation. [FN9] On December 30, 1998, Leader
was merged into The Leader Mortgage Company,
LLC, with the result that "Leader Mortgage Co."
ceased to exist. [FN10]
On October 14, 1999, Harbor Financial Mortgage
Co. filed a bankruptcy petition in the Northern District
of Texas, case no. 99-37257. [FN11] On an
unidentified date and through an unidentified transaction,
United Western Bank fka Matrix Capital
Bank became the owner of the note and mortgage.
[FN12] The note is currently serviced by Dovenmuehle
Mortgage, but there are no facts addressing
when Dovenmuehle assumed that role. [FN13]
On June 1, 2004, The Leader Mortgage Company,
LLC was merged into U.S. Bank National Association
and out of existence. [FN14]
The debtor filed this chapter 13 case on February
19, 2007. On March 1, 2007, Leader filed a motion
to dismiss and for in rem relief or sanctions in
which it identifies itself as a creditor. Leader points
to the debtor's multiple filings and asks that the
court impose sanctions to protect Leader in the
event that the debtor files yet another bankruptcy
case. Specifically, Leader moves for an order finding
that the debtor and anyone in contractual privity
with the debtor be barred from ever listing the real
estate subject to its mortgage in any bankruptcy fil-
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ing or that the debtor be barred from filing any
bankruptcy petition for 180 days from the date on
which the order is entered. See 11 U.S.C. §§
109(g), 349(a).
THE POSITIONS OF THE PARTIES
The debtor contends that the motion for sanctions
should be dismissed because Leader does not have
standing to pursue this issue. The argument is that
Leader is not a creditor of the debtor, having assigned
its interest in the note and mortgage years
ago and having itself ceased to exist. Leader responds
that it has standing because it is the record
holder of the judgment. Alternatively, it argues that
United Western Bank should be substituted as the
movant.
DISCUSSION
I. Does Leader Have Standing to Request Sanctions?
A.
[1][2][3][4][5] A motion to dismiss for lack of
standing questions whether the court has subject
matter jurisdiction. See Fed.R.Civ.P. 12(b)(1)
(made applicable by Fed. R. Bankr.P. 7012,
9014(c)). Because of this, standing can be raised at
any time and is not subject to waiver. See Fed. R.
Civ. P. 12(h)(3) (made applicable by Fed. R.
Bankr.P. 7012, 9014(c)). A challenge to standing
may be either a facial attack on a pleading or a factual
attack. Where, as here, a party raises a factual
attack, the court has discretion to permit the parties
to submit affidavits and documents showing the jurisdictional
facts. Ohio Nat'l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir.1990). Leader, as
the party invoking federal court jurisdiction for its
motion, has the burden of proof. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992).
B.
*3 The doctrine of standing arises out of the separation
of powers set forth in the United States Constitution
in which federal power is divided among the
legislative, executive, and judicial branches. U.S.
CONST. art. I, art. II, and art. III. The power, or
jurisdiction, of federal courts is limited to "Cases"
and "Controversies." U.S. CONST. art. III, § 2, cl.
1. Those words are not defined in the Constitution,
and so it has been left to the courts to identify the
matters that fall within that grant, in contrast to
matters appropriately left to the executive and legislative
branches. Lujan, 504 U.S. at 559-60.
[6][7][8] The overall standing question is "whether
the litigant is entitled to have the court decide the
merits of the dispute or of particular issues." Warth
v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45
L.Ed.2d 343 (1975). There are two aspects to the
doctrine: a constitutional limitation and a jurisprudential
limitation. "In both dimensions it is founded
in concern about the proper--and properly limited-
-role of the courts in a democratic society." Id. To
establish the "irreducible constitutional minimum"
for standing, Lujan, 504 U.S. at 560, a party must
show three things: "(1) an injury in fact that is concrete
and particularized; (2) a connection between
the injury and the conduct at issue-the injury must
be fairly traceable to the defendant's actions; and
(3)[a] likelihood that the injury would be redressed
by a favorable decision of the Court." Courtney v.
Smith, 297 F.3d 455, 459 (6th Cir.2002) (internal
quotation marks omitted).
[9][10] A plaintiff who meets this minimum is still
subject to the jurisprudential limitations on standing.
These require the plaintiff to show that (1) he
is asserting his own legal rights, as opposed to the
legal rights of others; (2) the issue raised is not an
abstract question of wide public significance which
is better addressed by the legislative branch; and (3)
his claim is within the zone of interest to be protected
by the statute in question. Jet Courier Servs.,
Inc. v. Fed. Reserve Bank of Atlanta, 713 F.2d
1221, 1225 (6th Cir.1983). In the bankruptcy context,
the zone of interest inquiry is whether the code
"can be properly understood as granting the
plaintiff ... the right to seek judicial relief for the alleged
impropriety." Schroeder v. Crown Life Ins.
Co. (In re Icelands, Ltd.), No. 97-11775, 1999 WL
1038245, at *3 (Bankr.S.D.Ohio, Sept.2, 1999).
"These additional restrictions enforce the principle
that, as a prudential matter, the plaintiff must be a
proper proponent, and the action a proper vehicle,
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to vindicate the rights asserted." Coal Operators &
Assocs., Inc. v. Babbitt, 291 F.3d 912, 916 (6th
Cir.2002) (internal quotation marks omitted).
C. Constitutional Standing
[11][12] The motion to dismiss and for sanctions
filed by Leader states that it is the owner and holder
of the note and mortgage at issue and a secured
creditor of the debtor. The undisputed facts show
otherwise. Leader sold and assigned its interest in
these instruments to Harbor Financial Mortgage
Corporation in 1997, ten years before the debtor
filed this case. The mortgage assignment states that:
*4 ... The Leader Mortgage Company ... for and
in consideration of ... valuable considerations ...
to it paid by Harbor Financial Mortgage Corporation
... has sold, assigned, and transferred, and
does hereby sell, assign and transfer to [Harbor]
all the rights, title, and interest of [Leader] to a
certain real estate mortgage, dated the 27th day of
April 1989 A.D. made by Rodger P. Saffold II
and Angela P. Saffold[.] [FN15]
Under Ohio law, the "[t]ransfer of an instrument
vests in the transferee any right of the transferor to
enforce the instrument." May v. Westfield Village,
L.P., No. 02-COA-051, 2003 WL 22176727, at *2
(Ohio Ct.App. Sept.22, 2003) (quoting Ohio
Rev.Code § 1303.22).
The allegation in the request for sanctions is that,
without the imposition of sanctions, the debtor
"will again attempt to frustrate Creditor's [i.e. Leader's]
right to have its collateral sold at Sheriff's
sale." [FN16] Plainly, however, this is not accurate
because Leader sold its interest in the note and
mortgage long ago. Because Leader no longer has
an interest in the collateral that secured the loan,
Leader will not suffer any personal injury if the
debtor files another bankruptcy case that includes
the property. Just as Leader will not be harmed by
any future actions of the debtor, neither will it be
helped by a favorable decision by the court on the
sanction motion. Leader has not, therefore, shown
the irreducible constitutional minimum to establish
that it has standing to raise this issue.
D. Jurisprudential Standing
[13] Additionally, and alternatively, Leader fails to
meet the jurisprudential limitations on standing for
two reasons. First, Leader is not asserting its own
rights because it has none. Second, Leader's claim
is not within the zone of interest protected by the
bankruptcy code sections at issue. Leader first
points to § 349(a) in support of its request to impose
sanctions. This section provides that the dismissal
of a bankruptcy case does not bar the later
discharge of a debt that was dischargeable in the
case dismissed, unless the court orders otherwise.
11 U.S.C. § 349(a). Leader is asking for sanctions
in the form of an order declaring that its debt will
not be dischargeable in any other bankruptcy filed
by the debtor. A debt means "liability on a claim."
11 U.S.C. § 101(12). A claim is, among other
things, a "right to payment." 11 U.S.C. § 101(5).
The debtor does not have any liability to Leader on
a claim because Leader no longer has a right to
payment from the debtor. As a result, Leader does
not have the right to seek judicial relief under §
349(a) and does not, therefore, come within the
zone of interests protected by that statute.
Leader also cites § 109(g). That section states that,
under certain circumstances, an individual who has
had a case pending may not file a bankruptcy petition
for 180 days after dismissal of the first case. 11
U.S.C. § 109(g). Leader is also outside the zone of
interest protected by this statute because it has no
interest that would be affected by a second filing.
*5 [14][15] Leader states, without legal citation or
argument, that it has standing because a judgment
exists in its name against the debtor. Under Ohio
law, however, Leader ceased to exist as a separate
legal entity when it was merged into The Leader
Mortgage Company, LLC and the latter entity
ceased to exist when it was merged into U.S. Bank
National Association. See Morris v. Inv. Life Ins.
Co., 27 Ohio St.2d 26, 272 N.E.2d 105, 108 (Ohio
1971) (per curiam). The judgment does not, therefore,
give Leader standing to prosecute this motion
for sanctions.
II. Should United Western Bank Be Substituted
as the Movant?
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[16] As an alternative, Leader asks in its post-trial
brief that United Western Bank be substituted as
the movant under Federal Rule of Civil Procedure
17(a). FED.R.CIV.P. 17 (made applicable by Fed.
R. Bankr.P. 7017, 9014(c)).
[17] This argument again raises the question of
standing: Does Leader have standing to argue that
non-party United Western Bank should be substituted
as the movant? Rule 17 states that "[e]very
action shall be prosecuted in the name of the real
party in interest." Fed.R.Civ.P. 17(a). This rule is
intended to protect a defendant from multiple suits
brought by different parties resulting in multiple
damage awards arising out of the same claim.
Hefley v. Jones, 687 F.2d 1383, 1388 (10th
Cir.1982). When a defendant objects that a plaintiff
is not the real party in interest, the case should not
be dismissed until a reasonable time has been allowed
for the real party in interest to be substituted.
Fed.R.Civ.P. 17(a). The difficulty here is that Leader
did not have standing to file the motion for sanctions.
And a party that lacks standing to prosecute
an action also lacks standing to make a rule 17 motion
to substitute. Zurich Ins. Co. v. Logitrans, Inc.,
297 F.3d 528, 531 (6th Cir.2002). The motion is,
therefore, denied. [FN17]
CONCLUSION
For the reasons stated, Leader Mortgage Co.'s motion
for sanctions against the debtor is denied because
Leader does not have standing to raise that issue.
[FN18] Leader's motion to substitute another
entity as the movant is denied for the same reason.
A separate order will be entered reflecting this decision.
FN1. Docket 14.
FN2. These facts are drawn from the
parties' stipulations, the docket, the evidence
presented at the hearing (including
testimony and exhibits), and the parties'
post-trial briefs. The facts are not disputed.
FN3. Stip. 1, 2; exh. A to debtor's post-trial
brief. (Docket 33, 40).
FN4. Exh. B to debtor's post-trial brief;
Affidavit of Julie Kohn attached to Leader's
post-trial brief. (Docket 40, 42).
FN5. Stip. 3. (Docket 40, 42).
FN6. Stip. 4.
FN7. Stip. 5.
FN8. Stip. 6.
FN9. Exh. C to debtor's post-trial brief;
Kohn Aff. ¶ 5.
FN10. Exh. D to debtor's post-trial brief.
FN11. Kohn Aff. ¶ 6.
FN12. Kohn Aff. ¶ 7.
FN13. Kohn Aff. ¶ 8.
FN14. Exh. E to debtor's post-trial brief.
FN15. Exh. C to debtor's post-trial brief.
FN16. Motion at 8.
FN17. The court also notes that the evidence
is insufficient to prove that United
Western Bank is the actual owner of the
debtor's note and mortgage. The only evidence
on this point is an affidavit from Julie
Kohn, a manager and assistant vicepresident
of Dovenmuehle Mortgage,
which allegedly now services the note.
There are no assignment documents attached
to the affidavit and there is a time
gap in the allegations between (1) the date
that Harbor Financial Mortgage Co. held
the note and mortgage, and (2) the date
that those instruments transferred to United
Western Bank. The affidavit is also insufficient
because it does not explain why
counsel mistakenly represented in the first
place that Leader is the present owner of the note and mortgage, which casts doubt on Dovenmuehle's unsupported statement
2007 WL 2230194 Page 6
--- B.R. ----, 2007 WL 2230194 (Bankr.N.D.Ohio)
(Cite as: 2007 WL 2230194 (Bankr.N.D.Ohio))
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
that United Western Bank is the actual
owner.
FN18. Neither party raised any issue regarding
the earlier order dismissing the
case on Leader's motion and the court
makes no finding with respect to that order.
--- B.R. ----, 2007 WL 2230194 (Bankr.N.D.Ohio)
END OF DOCUMENT
2007 WL 2230194 Page 7
--- B.R. ----, 2007 WL 2230194 (Bankr.N.D.Ohio)
(Cite as: 2007 WL 2230194 (Bankr.N.D.Ohio))
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.