Bank of Am., N.A. v. Thompson
2014 Ohio 2300
Ohio Ct. App.2014Background
- Thompson obtained a 2005 loan from Countrywide; she signed a note for $91,248 and a mortgage to MERS.
- On May 1, 2012, MERS assigned the mortgage to Bank of America.
- Thompson defaulted in June 2012; Bank filed foreclosure in Nov 2012 with note, mortgage, and assignment attached.
- Thompson answered pro se; in Feb 2013 Bank moved for summary judgment; no hearing requested or extensions sought.
- Five days before the filing deadline, Thompson refiled an Answer in Affidavit of Negative Averment and filed bankruptcy; bankruptcy later dismissed Aug 1, 2013.
- Bank moved to reactivate; trial court granted summary judgment Sept 16, 2013; Thompson appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose | Bank, as holder with blank indorsement, has standing to enforce the note. | Thompson contends Bank lacked standing at filing. | Bank had standing; foreclosure action proper. |
| Summary judgment proper | Evidence shows holder status, default, and conditions precedent met; no genuine issue. | Thompson asserts genuine issues of material fact remain. | Summary judgment appropriate; no genuine issue for trial. |
| Due process / notice and opportunity to be heard | Local rules provided notice deadlines; no violation. | Thompson claims inadequate notice and opportunity to respond. | No due-process violation. |
| Identity of the entity entitled to enforce the note | Complaint identifies Bank as holder/enforcer of the note. | Bank should have stated a principal/agency relationship or representative capacity. | No Civ.R. 8(E) error; Bank properly identified as holder. |
Key Cases Cited
- Federal Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012-Ohio-5017) (standing required at filing for foreclosure based on note or mortgage)
- Nationstar Mortgage, L.L.C. v. West, 2014-Ohio-735 (2d Dist. Montgomery No. 25813 (2014)) (holder may enforce a negotiable instrument with blank indorsement)
- Pasqualone, 2013-Ohio-5795 (10th Dist. Franklin) (blank indorsement and holder entitlement to enforce)
- GMAC Mtge., L.L.C. v. Waller, 2013-Ohio-4376 (8th Dist. Cuyahoga) (standing to foreclose when note is possessed by mortgagee)
- CitiMtge., Inc. v. Byington, 2013-Ohio-3950 (6th Dist. Erie No. E-12-003) ( Civ.R. 9(C) conditions precedent may be generally alleged)
- Wright-Patt Credit Union, Inc. v. Byington, 2013-Ohio-3963 (6th Dist. Erie No. E-12-002) (summary-judgment standards in foreclosures)
- Hooten v. Safe Auto Ins. Co., 2003-Ohio-4829 (Supreme Court of Ohio) (notice and deadlines under local court rules)