Bank of New York Mellon v. Putman
2014 Ohio 1796
Ohio Ct. App.2014Background
- On January 26, 2006, Maryann J. Putman executed a promissory note for $540,000 to Countrywide/Home Loans for the Charleston Woods Drive property, secured by a mortgage with MERS as mortgagee and as nominee for Countrywide and its successors.
- The mortgage was recorded February 6, 2006; the Putmans defaulted and were notified by default letter on May 17, 2011.
- MERS assigned the mortgage to Bank of New York Mellon on November 28, 2011; the assignment was recorded December 1, 2011.
- BNY Mellon filed a foreclosure complaint February 8, 2012; the complaint attached the note indorsed in blank and the mortgage, plus the MERS-to-Bank assignment.
- BNY Mellon moved for summary judgment October 19, 2012; the Putmans opposed and moved to strike Suzanne Szymoniak’s affidavit; the trial court denied the strike and granted summary judgment in favor of BNY Mellon.
- The Putmans appealed, challenging the trial court’s rulings on striking the affidavit and on summary judgment, raising two assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in not striking the Szymoniak affidavit | Putmans argue the affidavit relied on unaffirmed documents without attached payment history. | Putmans contend the affidavit should be stricken because it lacked proper attachment of payment records. | First assignment overruled; affidavit proper evidence supports summary judgment. |
| Whether there were material issues of fact regarding appearance of the original note and standing | BNY Mellon had standing through possession of the note indorsed in blank and the mortgage assignment; no genuine issue exists. | Putmans contend lack of standing and issues about original note appearance create fact questions for trial. | Second assignment overruled; BNY Mellon established standing and entitlement to foreclose as a matter of law. |
Key Cases Cited
- Ireton v. JTD Realty Invests., L.L.C., 2011-Ohio-670 (12th Dist. Clermont 2011) (discretion in ruling on motion to strike)
- Wells Fargo Bank, N.A. v. Smith, 2013-Ohio-855 (12th Dist. Brown 2013) (motion to strike abuse of discretion standards with Civ.R. 56 context)
- State ex rel. Ebbing v. Ricketts, 2012-Ohio-4699 (Ohio Supreme Court 2012) (abuse-of-discretion standard for striking affidavits)
- Third Federal S. & L. Assn. of Cleveland v. Farno, 2012-Ohio-5245 (12th Dist. Warren 2012) (affidavits relying on referenced documents must attach or show those documents)
- U.S. Bank, N.A. v. Zokle, 2014-Ohio-636 (6th Dist. Erie 2014) (servicing-agent affidavit support in foreclosure)
- Regions Bank v. Seimer, 2014-Ohio-95 (10th Dist. Franklin 2014) (servicing agent affidavits as proper summary judgment evidence)
- JPMorgan Chase Bank, N.A. v. Carroll, 2013-Ohio-5273 (12th Dist. Clinton 2013) (servicing-agent affidavit sufficiency in foreclosure)
- Fifth Third Mortgage Co. v. Bell, 2013-Ohio-3678 (12th Dist. Madison 2013) (servicing-agent affidavit as valid summary judgment evidence)
- Deutsche Bank Natl. Trust Co. v. Sexton, 2010-Ohio-4802 (12th Dist. Butler 2010) (foreclosure evidence standards)
- Chase Manhattan Mortg. Corp. v. Urquhart, 2005-Ohio-4627 (12th Dist. Butler 2005) (foreclosure evidence standards)
- SRMOF 2009-1 Trust v. Lewis, 2014-Ohio-71 (12th Dist. Butler 2014) (standing requires note or mortgage interest at filing)
- Bank of New York Mellon v. Burke, 2013-Ohio-2860 (12th Dist. Butler 2013) (standing when mortgage or note was assigned at filing)
- BAC Home Loans Servicing, L.P. v. Mapp, 2013-Ohio-2968 (12th Dist. Butler 2013) (standing and mortgage-note interest at filing)
- CitiMortgage, Inc. v. Patterson, 2012-Ohio-5894 (8th Dist. Cuyahoga 2012) (standing analysis in foreclosure actions)