2013 Ohio 2293
Ohio Ct. App.2013Background
- Note and mortgage executed March 28, 2006 for $224,000 secured by Ashland County real property; MERS as nominee for lender; indorsement in blank by Countrywide; assignment from MERS to Bank of America recorded; August 2011 default on note/mortgage; Bank of America filed foreclosure and summary-judgment motion July 2012; Lewis opposed and extended response deadlines; August 14, 2012 summary judgment granted in Bank’s favor, after Lewis’s late response and without ruling on extensions.
- Plaintiff-appellee (Bank of America) contends it holds the note and mortgage and is entitled to foreclose based on record evidence and default.
- Defendant-appellant (Lewis) argues lack of leave to file the motion, failure to consider her timely opposition, and potential genuine issues of material fact; she asserts the court should not grant judgment under Civ.R. 56.
- The court affirmed the grant of summary judgment, finding no genuine issue of material fact and that Bank of America complied with evidentiary requirements; Lewis’s arguments on lack of leave and opposition were overruled.
- Judgment affirmed; costs assessed to the appellant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Leave to file summary judgment | Bank did not need leave to file | Bank should have obtained leave | Assigned error overruled |
| Consideration of opposition | De novo review shows no triable issue | Trial court erred in not considering opposition | No reversible error; de novo review supports judgment |
| Holder of note and amount due | Bank holds note and mortgage; amount due proven | No genuine issue over holder or amount due | No genuine issue; Bank entitled to foreclose |
Key Cases Cited
- Wachovia Bank of Delaware v. Jackson, 5th Dist. No. 2010–CA–00291, 2011–Ohio–3202 (Ohio 2011) (outline of evidentiary requirements for summary judgment in foreclosure actions)
- Bank of Am., N.A. v. Gray, 2013-Ohio-712 (Ohio 2013) (affidavit sufficiency and chain of title in possession of note)
- Deutsche Bank Natl. Trust Co. v. Hansen, 5th Dist. No. 2010 CA 00001, 2011-Ohio-1223 (Ohio 2011) (business-records and Evid.R. 803(6) compliance in summary-judgment evidence)
- Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (Ohio 1988) (reciprocal burden on nonmovant to present specific facts)
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (Ohio 1996) (governs summary-judgment standard and burden)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (Ohio 1987) (de novo standard for appellate review of summary judgments)