2013 Ohio 712
Ohio Ct. App.2013Background
- Gray executed a $130,400 note to Countrywide (Wholesaler) on July 6, 2007, secured by a mortgage with MERS as nominee for Countrywide.
- Mortgage and note were assigned to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP on Aug. 19, 2010.
- BAC merged with Bank of America, N.A. on or about July 1, 2011.
- Gray stopped paying in May 2010; Bank accelerated on June 16, 2010 and filed a foreclosure suit on Aug. 30, 2010.
- A first foreclosure action was dismissed on Sept. 28, 2011; a second suit was filed Apr. 13, 2012, based on the same grounds.
- Bank sought summary judgment; trial court granted it on Sept. 10, 2012; Gray and Morse appeal challenging standing/notice and the note’s possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether second acceleration notice was required before the second foreclosure | Bank argues no second notice needed since terms unchanged | Gray/Morse contend a second notice was required after dismissal | No second notice required under these facts |
| Whether Bank had possession of the note despite an allonge discrepancy | Bank possessed and endorsed the note in blank; allonge omission not fatal | Note attached to complaint lacked the allonge | Bank proven holder in due course; allonge omission not fatal; Bank had possession |
Key Cases Cited
- U.S. Bank Natl. Assn. v. Gullotta, 120 Ohio St.3d 399 (2008-Ohio-6268) (standards for acceleration and cure; integration of acceleration)
- HSBC Bank USA v. Thompson, 2010-Ohio-4158 (2d Dist. Ohio) (enforceability of note/possession when allonge issue arises)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (1987) (summary judgment standard; de novo review)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992) (summary judgment cautious grant; doubts resolved for non-movant)
- Vahila v. Hall, 77 Ohio St.3d 421 (1997) (burden-shifting in summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (burden shifting on movant)