2017 Ohio 7686
Ohio Ct. App.2017Background
- In 2006 the Bridges executed a promissory note and mortgage in favor of Nationstar; the note had an allonge indorsed in blank and the mortgage was assigned to Bank of New York Mellon in 2015.
- Bank of New York Mellon filed foreclosure in January 2016; the Bridges initially answered pro se, later obtained counsel who moved to dismiss/judgment on the pleadings (denied), then filed an answer.
- Bank of New York Mellon moved for summary judgment supported by an affidavit from a servicing-agent employee attaching the note (with blank indorsement), mortgage, assignment, payment history, and notice of default.
- The Bridges did not file any response to the summary-judgment motion and raised arguments only on appeal.
- The trial court granted summary judgment and decree of foreclosure; the Bridges appealed raising three assignments of error challenging HUD-regulation compliance, plaintiff’s standing, and sufficiency of evidence of default/amount due.
Issues
| Issue | Plaintiff's Argument (Bank) | Defendant's Argument (Bridges) | Held |
|---|---|---|---|
| 1) Whether HUD regulations (24 C.F.R.) were conditions precedent to foreclosure | HUD regs not applicable; mortgagee complied with applicable law and provided required notices | HUD-regulation notice and face-to-face requirements applied and were not complied with | Court: HUD regs did not apply (loan not HUD-insured/incorporating HUD regs); plaintiff need not show compliance; assignment overruled |
| 2) Whether Bank had standing to sue (possession/holder of note and mortgage) | Affidavit and attached note (allonge indorsed in blank), mortgage and assignment show holder/possession at filing | Assignment is bogus; blank indorsement unenforceable; affidavit insufficiently detailed | Court: plaintiff met initial Civ.R.56 burden (affidavit + documents); Bridges forfeited challenges by not responding; standing proven |
| 3) Whether Bank submitted competent evidence of default and amount due | Affidavit plus payment history and default notices establish default and amounts | Payment history is unclear/cryptic; therefore genuine dispute over default and amount exists | Court: affidavit and payment history sufficient; Bridges produced no contrary evidence; summary judgment proper |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo review of summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Civ.R.56 standard and summary-judgment test)
- Dresher v. Burt, 75 Ohio St.3d 280 (burden-shifting framework for summary judgment)