Bank of America, N.A. v. Miller
956 N.E.2d 319
Ohio Ct. App.2011Background
- BOA foreclosed against the Millers; BOA claims to be the successor by merger to Society Bank and holder of the note and mortgage.
- Note payable to Society Mortgage Company; BOA later filed notices of merger documentation; documents are of questionable authenticity and chain of title.
- BOA supported summary judgment with affidavits from BAC/BofA entities and a separate NY servicing affidavit, but the affidavits conflict and lack clear basis.
- Millers submitted Stephen Miller’s affidavit suggesting FNMA holds the note; BOA disputed, asserting FNMA is investor, not holder.
- Trial court granted summary judgment for BOA in July 2010; Millers appealed asserting lack of real-party-in-interest and holder status.
- Appellate court reversed, finding genuine issues of material fact regarding real party in interest, holder status, and successor-in-interest evidence, due to improper or confusing documentation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Real party in interest to judgment on note/mortgage | BOA is the holder and thus the real party in interest. | BOA lacks possession of the note and proper chain of title; FNMA may be holder. | Genuine issues of material fact exist; BOA not clearly the real party in interest. |
| Holder of the note subject to the judgment | BOA is the holder of the note and mortgage; documentation shows ownership. | Documents are unclear; note not attached to complaint; U.S. Bank custodian issues create doubt. | Genuine issues of material fact exist regarding BOA’s status as holder. |
| BOA as successor in interest to Society Mortgage | Merger documents and chain of title show BOA as successor. | Merger documents were not properly certified/authenticated; copies are illegible and untrustworthy. | Genuine issues of material fact exist; third assignment sustained. |
Key Cases Cited
- Adams v. Madison Realty & Dev., Inc., 853 F.2d 163 (3d Cir. 1988) (holder proof essential to prevent double payment)
- Wells Fargo Bank, N.A. v. Sessley, 188 Ohio App.3d 213 (2010-Ohio-2902) (real party in interest in foreclosure is current holder)
- Congress Park Busi. Ctr., L.L.C. v. Nitelites, Inc., 2007-Ohio-4200 (Ohio App. 2007) (authenticity of copies; evidentiary rules for documents under seal)