Bank of Am. v. Eten
2014 Ohio 987
Ohio Ct. App.2014Background
- In 2004 Chet Eten executed a $109,000 promissory note and a mortgage (signed by Chet and Donna Eten) to secure purchase of a Hamilton, Ohio property.
- Eten defaulted; Bank of America filed foreclosure in Feb 2012 alleging it was holder and in possession of the note and mortgage. Exhibits attached included the original note with an undated allonge endorsing BAC Home Loans Servicing, L.P., the mortgage to MERS (as nominee), and a recorded assignment of the mortgage from MERS to BAC dated April 6, 2010 (recorded April 12, 2010).
- Bank of America asserted it was successor by merger to BAC; Pordash affidavit (Bank VP) stated Bank of America is successor by merger to BAC and possessed the note.
- Eten filed a pro se answer focused on loan-modification efforts and submitted unsigned statements; he did not deny Bank of America’s pleadings or produce evidentiary rebuttal to the summary-judgment motion.
- Trial court granted Bank of America’s motion for summary judgment (and default judgments as to non-appearing parties). Appellants appealed arguing lack of standing because Bank of America had neither the mortgage assigned to it nor the note endorsed to it directly (only BAC).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Standing / real party in interest to bring foreclosure | Bank of America: successor by merger to BAC, had possession and was holder of note and mortgage | Eten: BAC (not Bank of America) held the note/mortgage; no evidence Bank of America obtained them via merger | Bank of America had standing as successor by merger to BAC and thus could enforce the note/mortgage |
| 2. Whether merger removes need for assignment/endorsement to Bank of America | Merger substitutes Bank of America for BAC; no separate assignment/endorsement to Bank of America required | Eten: needed assignment/endorsement to Bank of America specifically | Held merger lets Bank of America "step into the shoes" of BAC so further endorsement/assignment unnecessary |
| 3. Sufficiency of evidentiary showing of merger/possession | Bank produced complaint attachments (note, allonge, mortgage, assignment) and Pordash affidavit asserting successor-by-merger status and possession | Eten: no documentary proof of merger in record; contested that Bank of America was real party | Court found affidavit plus attachments sufficient and appellants produced no rebuttal evidence |
| 4. Effect of defendant's failure to deny pleadings / present evidence | Bank: uncontroverted pleadings and affidavit entitled it to summary judgment | Eten: relied on pro se statements and failed to specifically deny allegations or present admissible evidence | Court applied Civ.R. 8(D)/Civ.R.56 principles—appellants’ failure to rebut evidence admitted allegations and defeated triable-issue showing |
Key Cases Cited
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367 (notice on summary-judgment standard) (standard for summary judgment procedures)
- Acordia of Ohio, L.L.C. v. Fishel, 133 Ohio St.3d 356 (merger permits successor to enforce agreements of absorbed entity)
- Federal Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (standing in foreclosure must exist as of complaint filing)
- Morris v. Investment Life Ins. Co., 27 Ohio St.2d 26 (definition and legal effect of corporate merger)