IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEUTSCHE BANK NATIONAL )

TRUST COMPANY, as Trustee )

under Pooling and Servicing )

Agreement dated as of July 1, 2005 )

Morgan Stanley ABS Capital I Inc. ) No. 12 C 3644

Trust 2005-HE3 Mortgage Pass- )

Through Certificates, Series 2005-HE3, )

) Judge Ronald A. Guzmán

Plaintiff, )

)

v. )

)

HERBERT ELESH, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Deutsche Bank National Trust Company, as trustee of Morgan Stanley ABS Capital

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

that plaintiff lacks 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 sufficiency of its 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 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). Plaintiff contends that it owns the 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.1

 As proof of this proposition, plaintiff points to “the promissory note attached to [its]

Complaint,” which it says “shows an indorsement in blank.” (Pl.’s Resp. Opp’n Mot. Dismiss at 5);

see 810 Ill. Comp. Stat. 5/3-201, 5/3-204 (defining “indorsement” as “a signature . . . that . . . is

made on an instrument” by a person other than its maker or issuer for the purpose of negotiating, i.e.,

transferring possession of, the instrument to another person); 810 Ill. Comp. Stat. 5/3-205 (stating

that an instrument that is not indorsed to a specific person is “indorsed in blank,” and “may be

negotiated by transfer of possession alone”). 

In reality, however, the note attached to the complaint is not indorsed at all. Though it

contains indorsement language, “pay to the order of (blank) without recourse Decision One

Mortgage Company LLC,” it is not signed by Decision One. (See Compl., Ex. B, Note.) Thus,

contrary to plaintiff’s claim, the note attached to the complaint is not “indorse[d] in blank.” 

Plaintiff’s explanation for this fact is that “the original [note is] indorsed,” but “the signature

is not visible in the copy filed” with the complaint. (Pl.’s Resp. Opp’n Mot. Dismiss at 5.) To

remedy this problem, plaintiff says, it “has attached a better copy with [its] Response.” (Id.)

Poor copy quality is not, however, an adequate explanation for the differences between the

two versions of the note. For example, on page three of the note attached to the complaint, there is 

a single, blank signature line under the indorsement language and nothing – not even a shadow or

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Plaintiff also contends that it owns the mortgage that secures defendant’s debt. But,

because the mortgage is incidental to the debt, the Court addresses only the debt. See Moore v.

Lewis, 366 N.E.2d 594, 599 (Ill. App. Ct. 1977) (stating that a debt is assigned, and “the transfer

of the debt carrie[s] with it the mortgage security”) (citations omitted); see also In re BNT

Terminals, Inc., 125 B.R. 963, 970 (N.D. Ill. 1990) (“[A]n assignment of a mortgage without a

transfer of the underlying note [is] a nullity.”); 27A Chris Gimeno, Kim Simmons, Eric Surette,

Lisa Zakolski, Illinois Law & Practice Mortgages § 95 (“An attempt to assign a mortgage

without the transfer of the debt will not pass the mortgagee’s interest to the assignee . . . .”)

(footnotes omitted).

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stray mark – to suggest that something is typed, printed or stamped below it. (See Compl., Ex. B,

Note.) In the “better” copy attached to plaintiff’s response, an illegible scrawl appears on the

signature line, and beneath it, there is a second line with the words “Ryan Romanelli Asst.

Secretary” stamped below it. (See Pl.’s Resp. Opp’n Mot. Dismiss, Ex. B, Note.) Further, in the

poor quality note attached to the complaint, defendant’s signature is clear and dark, but in the

“better” verison, defendant’s signature is quite faint. (See Compl., Ex. B, Note; Pl.’s Resp. Mot.

Dismiss, Ex. B, Note.) Moreover, in the note attached to the complaint, a portion of a stamp that

says “True and Certified Copy” is visible in the upper-left-hand corner of the first page, and the

word “True” partially obscures the first word of the note. (See Compl., Ex. B, Note.) The “better”

copy bears no evidence of such a stamp, and the first word of the note is perfectly clear. (See Pl.’s

Resp. Mot. Dismiss, Ex. B, Note.) Given these discrepancies and plaintiff’s failure to submit any

other proof that it was injured by defendant’s default on the note, the Court will hold an evidentiary

hearing to determine whether plaintiff has standing to pursue this suit.

SO ORDERED. ENTER: April 25, 2013

__________________________________

HON. RONALD A. GUZMAN

United States District Judge

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