Background

• Appellant Sylvia Merlo owned residential property and signed a 2009 mortgage and promissory note in favor of BAC, now Bank of America, N.A. (BAC).
• Merlo defaulted on the loan in February 2011 and did not cure the default after notice.
• BAC filed foreclosure on August 10, 2011, attaching the note and mortgage; Merlo answered, challenging BAC’s standing among other defenses.
• BAC obtained summary judgment and a foreclosure decree after discovery and an affidavit from BAC vice-president Stacie Pordash, establishing BAC’s possession of the note and interest in the mortgage.
• Merlo argued BAC lacked standing and that the affidavit did not meet Civ.R. 56 requirements; the trial court rejected these arguments.
• The Eleventh District affirmed the summary judgment, holding BAC had standing as the holder of the note or the mortgage at the time the complaint was filed; the dissent argued genuine issues remained regarding possession.

Issues

Key Cases Cited

• Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012-Ohio-5017) (standing requires an interest in the note or mortgage at filing)
• Fed. Home Loan Mortg. Corp. v. Rufo, 2012-Ohio-5930 (11th Dist. Ashtabula No. 2012-A-0011) (standing can be shown by possession/interest in note or mortgage)
• Mortgage Elec. Registration Sys. v. Petry, 2013-Ohio- (11th Dist. Portage No. 2008-P-0016) (standing as to enforce the note)
• U.S. Bank, N.A. v. Coffey, 2012-Ohio-721 (6th Dist. Erie No. E-11-026) (holder may enforce even if not owner)
• Nat’l City Real Estate Servs., LLC v. Shields, 2013-Ohio-2839 (11th Dist. Trumbull No. 2012-T-0076) (holder need not plead ownership of note)
• Bank One, N.A. v. Lytle, 2004-Ohio-6547 (9th Dist. Lorain No. 04CA008463) (personal knowledge may be inferred in affidavits)
• State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459 (1981) (authentication of documents via affidavit)