Bank of New York Mellon v. Ettayem
2014 Ohio 4487
Ohio Ct. App.2014Background
- In 2004 Ashraf and Natasha Ettayem executed a promissory note and mortgage securing a $472,000 loan to America's Wholesale Lender; the mortgage was recorded in Delaware County.
- An assignment from MERS (as nominee) to The Bank of New York Mellon (BONY) was recorded in 2012; BONY filed foreclosure in September 2012.
- Procedural history: discovery extensions were granted (final cutoff Jan 6, 2014); BONY produced the original note for inspection January 31, 2014; BONY moved for summary judgment Jan 27, 2014 and the trial court granted it in March 2014.
- Appellant raised discovery-based and evidence-based challenges on appeal: failure to timely produce originals (arguing dismissal), insufficient affidavit/authentication of the note and mortgage, alleged “robo-signing” of the mortgage assignment, and denial of leave to supplement his opposition.
- The trial court concluded BONY held the note (note endorsed in blank attached to complaint), the assignment was recorded, the servicer’s affidavit was sufficient under Civil Rule 56, and Appellant produced no contradictory Civ.R. 56 evidence—judgment affirmed.
Issues
| Issue | Plaintiff's Argument (BONY) | Defendant's Argument (Ettayem) | Held |
|---|---|---|---|
| Should case be dismissed for late production of originals? | BONY: produced originals before dispositive deadline and court should manage docket; no willful misconduct. | Ettayem: BONY did not produce original note/mortgage until after discovery cutoff; dismissal warranted. | Trial court did not abuse discretion; dismissal not required. |
| Was BONY entitled to summary judgment given standing/authentication? | BONY: attached note endorsed in blank, recorded assignment, and servicer affidavit establishing possession and balance. | Ettayem: affidavit and copies not properly authenticated; genuine issue on BONY’s interest. | Court found affidavit met requirements; BONY had standing and summary judgment proper. |
| Can Ettayem challenge validity/"robo-signing" of the mortgage assignment? | BONY: even if assignment defective, transfer of the endorsed note equitably assigns the mortgage; borrower lacks injury from assignment. | Ettayem: assignment was "robo-signed" (officer authority questionable) and invalid. | Court: internet evidence insufficient; borrower lacks standing to attack assignment; assignment (or note transfer) supports foreclosure. |
| Should leave to supplement opposition be granted for "newly discovered" originals and other materials? | BONY: originals were not newly discovered; exhibits irrelevant or available earlier. | Ettayem: Supplement based on newly discovered evidence (viewing originals Feb 17, 2014) and other materials. | Denial proper: materials not newly discovered and many exhibits irrelevant; trial court did not err. |
Key Cases Cited
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (standards for de novo review of summary judgment)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (cautious awarding of summary judgment; doubts resolved for nonmoving party)
- Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 87 (plaintiff must have interest in note or mortgage when suit filed)
- Vahila v. Hall, 77 Ohio St.3d 421 (moving party's and nonmoving party's burdens on summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (nonmoving party must produce specific facts to show genuine issue)
- Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46 (trial court discretion to dismiss for discovery violations must be cautiously exercised)
- Toney v. Berkemer, 6 Ohio St.3d 455 (failure to comply must be willful/bad faith before dismissal)