Opinion
Case No. 2:11-cv-274
04-24-2014
BAC HOME LOANS SERVICING LP, Plaintiff, v. FALL OAKS FARM LLC, et al., Defendants.
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp
ORDER
This matter is before the Court for consideration of the April 15, 2014 memorandum in opposition filed by Defendant James Moder. (ECF No. 148.) In this document, Defendant opposes Plaintiff's motion to correct the record nunc pro tunc. (ECF No. 146.) Because the Court has already granted Plaintiff's motion, the Court shall construe Defendant's filing as a motion for reconsideration.
Because the legal description of the property described in the mortgage was incorrect, a November 25, 2008 Mortgage Modification Agreement with Release modified the legal description before this litigation even began. (ECF No. 8-3.) That modified legal description, which also constitutes the legal description requested in the motion to correct the record nunc pro tunc, means that the mortgage encumbered the approximately 5.00 acres at the heart of this litigation and upon which this Court has permitted foreclosure. The incorrect parcel identifications targeted by the motion to correct the record nunc pro tunc are thus of no importance. If the parties have at times referred to an incorrect parcel number or an incorrect property description, such errors do not undercut that the note and mortgage encumber the correct property identified in the modified legal description.
Therefore, Despite Defendant's protestations to the contrary, he has been defending against the foreclosure of the relevant property throughout the years of this litigation. The correct legal description accompanied the operative complaint. See ECF No. 8-3, at Page ID # 441-42. Defendant's underlying premise continues to be that because the mortgage assignment identified the incorrect property, Plaintiff lacks standing to pursue foreclose. But as this Court has previously explained in this action, Defendant lacks standing to challenge the validity of the assignment. See BAC Home Loans Servicing LP v. Fall Oaks Farm LLC, No. 2:11-cv-274, 2013 WL 210729, at *3 (S.D. Ohio Jan. 18, 2013); BAC Home Loans Servicing LP v. Fall Oaks Farm LLC, 848 F. Supp. 2d 818, 825 (S.D. Ohio 2012).
Plaintiff has failed to present this Court with persuasive grounds for reconsideration. Accordingly, construing his memorandum in opposition as a motion for reconsideration, the Court DENIES the motion. (ECF No. 148.) The Special Master shall continue to proceed with the scheduled sale.
IT IS SO ORDERED.
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GREGORY L. FROST
UNITED STATES DISTRICT JUDGE