Bank of New York Mellon Trust Co, N.A. v. Loudermilk
2013 Ohio 2296
Ohio Ct. App.2013Background
- Loudermilk owned 4105 Lancaster-Chillicothe Rd S.W., Lancaster, Ohio; prior splits reduced acreage and a ten-acre house parcel were involved.
- In 2006 Loudermilk refinanced [$171,000] with LoanCity; MERS and others were involved as mortgage holders in a chain leading to Bank of New York Mellon as successor.
- The 2006 mortgage described the ten-acre parcel with the house but lacked a recorded mortgage description; a prior 2005 mortgage described the ten acres.
- A lot-split to separate the ten-acre parcel was not completed; the house parcel remained tied to the 2005/2006 financing, with Dale Loudermilk later administering the estate.
- Loudermilk defaulted in 2008; foreclosure action was filed January 27, 2010, seeking foreclosure on the ten-acre parcel; the trial court granted summary judgment on May 15, 2012.
- Appellants challenge the court’s rulings on issues including genuine issues of material fact, real party in interest, laches, probate statutes, and leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether genuine issues of material fact precluded summary judgment | Loudermilk lacked material facts to defeat; mortgage/ten-acre description consistent with chain of title. | There are disputed facts about notarization, deeds, and the lot split that prevent summary judgment. | No genuine issues; grant of summary judgment affirmed |
| Whether Bank Mellon is the real party in interest | Chain of endorsements shows Bank Mellon holds the note and mortgage and is entitled to enforce. | Assignments of mortgage were defective or incomplete, challenging status as real party in interest. | Bank Mellon is the real party in interest |
| Whether laches barred foreclosure | No unreasonable delay or prejudice; delay did not prejudice Loudermilk’s heirs. | Delay prejudiced heirs by inaction on claims and defenses. | Laches not proven; no basis to bar foreclosure |
| Whether probate statutes bar foreclosure claims | Foreclosure is an in rem remedy not a claim against the estate; statutes do not preclude. | Claims should be barred under R.C. 2117.06 and related provisions as estate claims. | Foreclosure not barred by probate statutes |
| Whether the trial court abused its discretion by denying leave to amend | Amendment would have asserted viable tort/other claims; appropriate to allow. | Amendment was late and would disrupt fully briefed dispositive motions; not an abuse. | Court did not abuse discretion; leave to amend denied |
Key Cases Cited
- Fifth Third Mortgage Co. v. Brown, 2012-Ohio-2205 (8th Dist. 2012) (non-mandatory legal description; substance suffices for mortgage validity)
- ABN AMRO Mortgage Group, Inc. v. Jackson, 159 Ohio App.3d 551 (2d Dist. 2005) (address/street number can suffice for description; chain of title governs notice)
- In re Bunn, 578 F.3d 487 (6th Cir. 2009) (federal case addressing lack of formal description in mortgage)
- Central Mortgage Co. v. Webster, 2012-Ohio-4478 (5th Dist. 2012) (mortgage follows the note; equitable assignment via transfer exists even without formal mortgage assignment)
- U.S. Bank National Assn. v. Marcino, 181 Ohio App.3d 328 (7th Dist. 2009) (note holder can be real party in interest even without mortgage assignment)