Bank of Am. v. Sweeney
2014 Ohio 1241
Ohio Ct. App.2014Background
- Sweeney granted a $107,000 note and a mortgage to MERS (as nominee) in 2005 for 315 Overlook Park Dr., Cleveland; she defaulted in 2009.
- BAC Home Loans (later Bank of America) sued in 2010 in Sweeney I for foreclosure, attaching a note and an assignment by Hill on behalf of MERS transferring to BAC; the court dismissed for lack of evidence BAC held the note.
- A second foreclosure action (Sweeney II) was filed in 2011 with the same note; the note in Sweeney I included an allonge transferring to BAC, which was not attached to Sweeney II.
- Sweeney asserted the note was unenforceable due to material alterations (missing allonge, blank indorsement) and lack of evidence BAC held the note.
- Bank of America moved for summary judgment; Sweeney cross-moved, arguing genuine issues of material fact remained and that the note had been altered.
- The trial court granted summary judgment for Bank of America; Sweeney appeals arguing multiple deficiencies in the evidence and the alteration theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BAC is entitled to foreclose as holder of the note | BAC held the original note prior to filing and evidences show default | Sweeney contends BAC lacks valid holder status due to missing allonge/alteration | Yes; BAC proven holder and entitlement to enforce the note |
| Whether the affidavits support summary judgement and holder status | Affidavits establish BAC’s possession and default, authenticating records | Affidavits are conclusory and insufficient to prove holder status | Affidavits sufficient to support holder status and damages |
| Whether the note's alleged alteration discharges Sweeney's obligation | Alteration did not modify obligations; removal of allonge and blank indorsement compatible | Alterations render note unenforceable | No; alterations did not discharge Sweeney's obligation |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (summary judgment standard applicable to Civ.R. 56(C))
- Doe v. Shaffer, 90 Ohio St.3d 388 (Ohio 2000) ( Civ.R. 56 burden on nonmovant; admissible evidence required)