Bank of New York Mellon v. Bobo
50 N.E.3d 229
Ohio Ct. App.2015Background
- In 2003 Elizabeth Bobo obtained a $102,000 mortgage from New Century; both Elizabeth and Marilyn Bobo executed the mortgage. New Century later assigned the mortgage, and BONY was recorded as assignee in 2008 (with a corrective assignment filed in 2013).
- BONY filed a foreclosure complaint in April 2013 attaching copies of the note (with a blank endorsement), mortgage, and assignments. An undated allonge was later produced by defendants in discovery.
- BONY moved for summary judgment supported by an affidavit of Lori Ann Dasch (Ocwen employee/servicer) and business records showing default, account balance, mailed default notices, possession of the original note endorsed in blank, and attachments of loan documents.
- Appellants filed extensive opposing materials including affidavits claiming forged/altered signatures, robo-signing/notarization problems, an allonge executed after New Century’s bankruptcy, and alleged PSA violations.
- The trial court granted summary judgment and decree of foreclosure to BONY; appellants appealed. The Fourth District affirmed.
Issues
| Issue | Plaintiff's Argument (BONY) | Defendant's Argument (Bobo) | Held |
|---|---|---|---|
| Authenticity of signatures on note/mortgage | BONY produced the original note endorsed in blank and supporting business records; signatures presumed valid absent evidence | Appellants claimed signatures and handwriting were forged/altered and noted added handwritten text | Court: appellants offered only self-serving, uncorroborated affidavits and no expert/non-expert corroboration; insufficient to create a genuine issue |
| Separation of note and mortgage (effect on assignment) | BONY possessed the note endorsed in blank; assignments and mortgage-note cross-references show transfer of both instruments | Appellants argued an allonge and assignments show note remained with New Century until 2011 and mortgage transfers occurred earlier, thus separation invalidates transfer | Court: possession of blank-endorsed note makes BONY a holder; assignments and reciprocal references bind instruments; separation argument fails |
| Robo-signing and notarization of assignments | BONY: appellants lack standing to challenge assignments; no evidence robo-signing/notarization affected these specific documents | Appellants pointed to signature discrepancies, missing notary journal for a notary involved, and allegations of robo-signing | Court: allegations speculative, not shown to apply to these documents; standing and lack of specific proof defeat challenge |
| Allonge and post-bankruptcy transfer (effect on transfer) | BONY relied on possession of the original note endorsed in blank at filing; possession controls holder status | Appellants claimed allonge negotiated the note after New Century bankruptcy and in violation of a court injunction | Court: allonge irrelevant where BONY had possession of the endorsed original note; claim fails |
| Compliance with Pooling & Servicing Agreement (PSA) | BONY: PSA compliance irrelevant to BONY’s status as holder in possession of the note endorsed in blank | Appellants: transfers into the trust violated PSA, so assignment to BONY invalid | Court: PSA noncompliance does not defeat BONY’s holder status or create double-payment risk; irrelevant to summary judgment |
| Sufficiency of servicer affidavit (Dasch) | Dasch averred personal knowledge through job duties, attached copies, verified records, and account balance; meets Civ.R. 56(E) | Appellants argued affidavit lacked personal knowledge and did not show review of originals | Court: affidavit adequately avers personal knowledge, attachment authenticity, and Dasch’s role; court properly relied on it |
| Notice of default and acceleration | BONY produced breach/default letters and Dasch averred they were mailed per note/mortgage; mailing suffices under the contract | Appellants (Elizabeth) swore she did not receive notice | Court: mortgage/note deem notice effective upon mailing; proof of mailing in affidavit and attached letters defeats the assertion of nonreceipt |
Key Cases Cited
- Smith v. McBride, 955 N.E.2d 954 (Ohio 2011) (standard of review for summary judgment)
- Dresher v. Burt, 662 N.E.2d 264 (Ohio 1996) (party moving for summary judgment bears initial burden; nonmoving party must produce specific evidence)
- DIRECTV, Inc. v. Levin, 941 N.E.2d 1187 (Ohio 2010) (requirements for summary judgment under Civ.R. 56)