Deutsche Bank National Trust v. Gilbert
982 N.E.2d 815
Ill. App. Ct.2012Background
- Gilbert entered into a 2005 mortgage secured by MERS; Deutsche Bank filed a 2008 foreclosure alleging it was the holder of the indebtedness.
- Gilbert argued Deutsche Bank lacked standing to foreclose because Deutsche Bank did not own the loan at filing; the mortgage and note identified MERS as the holder.
- An Assignment executed August 25, 2008 purported to transfer the loan to Deutsche Bank as Trustee under GSyAMP Trust 2005‑WMC‑2, but its date did not show when the transfer occurred.
- Trial court initially dismissed for lack of standing, then granted summary judgment for Deutsche Bank after reconsideration.
- On appeal, the court held Deutsche Bank lacked standing at filing and foreclosure must be dismissed, but Deutsche Bank was not liable on Gilbert’s TILA counterclaim because the alleged violation was not apparent on the face of the documents.
- The court affirmed in part and reversed in part: foreclosure dismissal and sale order vacated; counterclaim affirming Deutsche Bank’s lack of assignee liability under TILA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose at filing | Gilbert | Gilbert | Foreclosure improper; DB lacked standing at filing |
| TILA assignee liability | Gilbert | Gilbert | No assignee liability; violation not apparent on face of documents |
| Effect of 2-407 joinder | Deutsche Bank | Gilbert | Not applicable to cure lack of standing; dismissal affirmed |
Key Cases Cited
- Village of Kildeer v. Village of Lake Zurich, 167 Ill. App. 3d 783 (Ill. App. 1988) (standing determined as of filing; burden shifting in standing)
- U.S. Bank Nat’l Ass’n v. Sauer, 392 Ill. App. 3d 942 (Ill. App. 2009) (burden of proving standing; summary judgment appropriate)
- Barnes, 406 Ill. App. 3d 1 (Ill. App. 2010) (pleading foreclosure; exhibits negate inconsistent allegations)
- Wexler v. Wirtz Corp., 211 Ill. 2d 18 (Ill. 2004) (standing defects require dismissal; cannot be cured by later joinder)
- Ramadan v. Chase Manhattan Corp., 229 F.3d 194 (3d Cir. 2000) (definition of apparent on face for disclosures; extrinsic evidence limits)