Bank of New York Mellon v. Burke
2013 Ohio 2860
Ohio Ct. App.2013Background
- In 2005 Jeff and Mary Jo Burke executed a $320,000 promissory note and mortgage in favor of SouthStar Funding; the mortgage was recorded and the note included an allonge indorsed in blank.
- SouthStar assigned the mortgage to Bank of New York Mellon (BONY) on November 10, 2008; the assignment was recorded in January 2009.
- BONY filed a foreclosure complaint on May 6, 2011, alleging default and arrearage on the loan.
- Appellants produced an April 6, 2011 letter from EMC/Chase stating the loan’s "creditor" was "Wells Fargo Master," and argued the letter created a factual dispute as to the real party in interest at the time suit was filed.
- BONY submitted the original note and mortgage, the recorded assignment to BONY, and an allonge indorsed in blank; the trial court granted BONY summary judgment and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BONY was the real party in interest/ had standing when suit was filed | BONY had possession of the original note and mortgage, a recorded assignment to BONY, and an allonge indorsed in blank, establishing holder/interest | The April 6, 2011 letter shows "Wells Fargo Master" was the creditor, creating a genuine issue about who owned the note/mortgage | BONY was the real party in interest: possession of the note (with blank indorsement) and a recorded assignment established standing at filing |
| Whether the April 6, 2011 servicer letter created a material factual dispute | The letter did not show assignment or sale and did not negate BONY’s possession/assignment evidence | The letter indicated a change of creditor/servicer and thus created a dispute about ownership | The letter only notified a servicer change; it did not evidence transfer of ownership or undermine BONY’s documentary proof |
Key Cases Cited
- Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (Ohio 2012) (plaintiff must have interest in either the note or mortgage at time suit is filed to be real party in interest)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing is determined at commencement of suit)
- Shealy v. Campbell, 20 Ohio St.3d 23 (Ohio 1985) (real party in interest rule protects defendants and ensures finality of judgment)