IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Deutsche Bank National Trust )

Company, )

)

Plaintiff, ) No. 12 C 3644

v. )

) Judge Ronald A. Guzmán

Herbert N. Elesh, )

)

Defendant, )

MEMORANDUM OPINION AND ORDER

Plaintiff, DeutscheBank National Trust Company, as trustee ofMorgan StanleyABSCapital

IInc. Trust 2005 HE-3, has filed this suit to foreclose defendant’s mortgage. Defendant contends that

plaintifflacks standing to pursue this suit and asks the Court to dismiss it. Because defendant attacks

the factual basis of plaintiff’s standing, rather than the sufficiencyofits jurisdictional allegations, the

Court can consider matters outside of the pleadings in deciding this motion. See Apex Digital, Inc.

v. Sears Roebuck &Co., 572 F.3d 440, 444 (7th Cir. 2009). Plaintiff, which has the burden of proof

on this issue, has constitutional standing to pursue this suit only if it suffered a “concrete and

particularized” injury that is traceable to defendant’s conduct and is likely to be redressed by a

decision in its favor in this case. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

With respect to that issue, plaintiff alleges that it owns the promissory note defendant gave

to his lender, Decision One Mortgage Co., and thus has been injured by defendant’s failure to make

the payments due under it. As proof of this contention, plaintiff attached to its complaint what it

claims is a true copy of the promissory note bearing an indorsement in blank. However, the note

attached to the complaint bears no indorsement whatsoever as the purported indorsement language

is not signed by the original owner or anyone else. In response to defendant’s motion to dismiss,

plaintiff submitted what it represents is a better copy of the original note. However, the “better

Case: 1:12-cv-03644 Document #: 65 Filed: 05/21/13 Page 1 of 2 PageID #:527
copy,” though it contains a purported signature, differs in a number of respects from the alleged true

copy attached to the complaint. To allow plaintiff an opportunity to clear up the inconsistencies and

establish ownership of the promissory note upon which its standing depends, the Court ordered an

evidentiary hearing.

The only evidence plaintiff offered at the hearing was the testimony of one witness from the

servicer of the note, Ocwen Loan Servicing. The witness had no personal knowledge of whether,

when or by whom the contested note was indorsed or any other aspect of the transactions underlying

this suit. Moreover, her testimony that Ocwen has a practice of seeking indorsements for notes

without them is vitiated by her belief that an indorsement is a rubberstamp of the phrase “pay to the

order of” rather than a signature by the obligee of the note. 

For these reasons and those stated in open court, the Court finds that plaintiff has failed to

establish that: (1) the purported original promissory note is authentic; (2) the note was properly

indorsed by an agent of the obligee; or (3) that, when plaintiff filed this suit, it possessed or owned

the original promissory note. Because plaintiff has failed to establish that it was injured by

defendant’s default on the note, it does not have standing to pursue this suit. Accordingly, the Court

grants defendant’s motion to dismiss [40] and dismisses this suit for lack of subject matter

jurisdiction. The Court strikes as moot defendant’s motion to strike [45] and plaintiff’s motions for 

summary judgment, to appoint a special commissioner and to reassign [51, 54 & 60].

SO ORDERED ENTER: May 21, 2013

___________________________________

RONALD A. GUZMÁN

United States District Judge

2

Case: 1:12-cv-03644 Document #: 65 Filed: 05/21/13 Page 2 of 2 PageID #:528