Bank of Am. v. Lynch
2014 Ohio 3586
Ohio Ct. App.2014Background
- Loan originated by Virginia Fitzgerald in 2005 for Collier Road property, secured by mortgage (Gregory Fitzgerald also on loan).
- Virginia and Gregory divorce in 2008; divorce decree assigns primary responsibility for mortgages to Virginia, who later dies in 2010.
- Bank of America received the note and mortgage assignment in 2011; loan allegedly defaulted with no payments after August 1, 2011.
- Lynch resided in the Collier Road home and attempted smaller payments, which the bank allegedly refused.
- Bank filed foreclosure in 2012 seeking to enforce the note and mortgage; Lynch answered, Gregory Fitzgerald defaulted and was later defaulted by the court.
- Bank moved for default against Gregory Fitzgerald and summary judgment against Lynch; Lynch challenged summary judgment on multiple grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice of default proper before acceleration | Bank argues no unilateral duty to notify Lynch because he was not Borrower. | Lynch asserts he was entitled to notice under mortgage and HUD-related rules. | Assignment of error overruled; notice requirement not applicable to Lynch. |
| Affidavit sufficiency under Civ.R. 56(E) | Hunter's affidavit shows personal knowledge and business records kept; meets Civ.R. 56(E). | Lynch contends affidavit lacks basis for personal knowledge and admissibility. | Affidavit properly supported; second assignment overruled. |
| Bank's standing/Real Party in Interest | Bank attached valid assignment showing transfer of mortgage to Bank of America; possession of note. | Lynch argues assignment not attached and ownership not proven. | Bank had standing; third assignment overruled. |
Key Cases Cited
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio Supreme 1996) (summary-judgment standard; Dresher establishes burden-shifting on movant)
- Schwartzwald v. Fed. Home Loan Mortgage Corp., 134 Ohio St.3d 13 (Ohio 2012) (standing/real-party-in-interest in foreclosure; mortgage assignment considerations)
- Koch v. Geauga Tr., 2013-Ohio-4423 (Ohio Ct. App. 2013) (requirements for valid mortgage assignment; acknowledgment and recording under RC 5301.32)
- Bank One, N.A. v. Swartz, 2004-Ohio-1986 (Ohio Ct. App. 2004) (affidavit credibility and Civ.R. 56; business-records doctrine)