Bank of Am., N.A. v. Barber
2013 Ohio 4103
Ohio Ct. App.2013Background
- Barber purchased a home in Eastlake, Ohio, on June 30, 2010, with a BAC loan of $88,500 and a note payable to BAC.
- Mortgage was granted to MERS as nominee for BAC to secure the loan.
- Barber defaulted on September 1, 2011; debt accelerated and MERS assigned the mortgage to BAC on December 13, 2011.
- BAC filed foreclosure on February 14, 2012, alleging it held the note and mortgage; complaint attached note, mortgage, and assignment.
- Barber and spouse answered April 10, 2012, denying allegations and asserting BAC lacked standing; BAC moved for summary judgment April 24, 2012.
- Trial court granted summary judgment on January 8, 2013; ordered sale; appellants movant to vacate sale denied January 25, 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did BAC have standing to file foreclosure? | Barber holds no stake; BAC lacks standing. | BAC failed to prove it had standing at filing. | BAC had standing; record showed BAC held note and mortgage. |
| Was there adequate evidence to support summary judgment? | Note, mortgage, assignment plus Marion affidavit show entitlement. | Insufficient evidence of standing or default disputed. | Evidence properly supported summary judgment. |
| Was the assignment/signer authority properly challenged or waived? | Slee’s authority asserted; sufficient evidence of assignment stands. | Slee’s authority or robo-signer issue not properly raised; waivable. | Argument waived; BAC not required to prove Slee’s authority. |
Key Cases Cited
- Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012-Ohio-5017) (standing is jurisdictional and requires at filing)
- Bank of New York v. Dobbs, 5th Dist. Knox No. 2009-CA-000002 (2009-Ohio-4742) (assignment of mortgage can transfer note where intent shows)
- Rufo v. Federal Home Loan Mortgage Corp., 2012-Ohio-5930 (11th Dist. Ashtabula No. 2012-A-0011) (recognizes standing as a jurisdictional issue; analysis de novo)
- State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d 176 (1973) (standing is a prerequisite to jurisdiction)