2020 Ohio 4742
Ohio Ct. App.2020Background
- In 2005 the Fishers executed an adjustable-rate note for $842,316 and a mortgage recorded in Cuyahoga County in favor of MERS as nominee for Countrywide.
- Countrywide executed an assignment to The Bank of New York Mellon (BONYM) in 2010 (recorded May 6, 2010); BONYM later filed a bankruptcy stay motion attaching a copy of the note with an undated allonge.
- The Fishers executed a 2015 loan modification referencing Green Tree Servicing as servicer/lender but the modification reaffirmed the original loan documents and did not expressly transfer the note.
- After missed payments BONYM’s servicer sent a default notice in September 2017; a title report questioned the 2010 assignment, so a second assignment dated December 19, 2017 was recorded January 3, 2018.
- BONYM filed foreclosure January 16, 2018; BONYM moved for summary judgment supported by affidavits from an SPS employee (Soberon). The trial court (via magistrate) granted summary judgment and decree of foreclosure; the Fishers appealed.
Issues
| Issue | Plaintiff's Argument (BONYM) | Defendant's Argument (Fishers) | Held |
|---|---|---|---|
| 1. Does the 2015 loan modification transfer the note/defeat BONYM's standing? | Modification did not transfer or negotiate the note; Green Tree acted as servicer/agent, not as holder. | The modification named Green Tree as lender/servicer and thus transferred the note to Green Tree, leaving BONYM without standing. | Court: Modification did not operate as a special indorsement or transfer; BONYM retained the right to enforce. |
| 2. Was BONYM in possession of the original note and are differing note copies fatal? | BONYM possessed the original (through custodian), the note was indorsed in blank to BONYM and copies were properly authenticated. Two versions (allonge vs. blank indorsement) do not create a genuine issue. | Different versions (bankruptcy exhibit had an allonge; foreclosure exhibit had a blank indorsement) raise authenticity/alteration issues and create factual disputes. | Court: BONYM proved possession and entitlement to enforce; differences were not material and did not preclude summary judgment. |
| 3. Were Soberon’s affidavits inadmissible for lack of personal knowledge/authentication? | Soberon, as SPS Document Control Officer with access to business records and a POA for servicing, had sufficient personal knowledge to authenticate documents and payment history. | Soberon lacked personal knowledge of originals and prior servicer records; supplemental affidavit raised new/ speculative matters. | Court: Affidavits were admissible; Soberon had requisite knowledge and the supplemental affidavit clarified (not ambushed) issues. |
| 4. Did BONYM fail to satisfy conditions precedent (proper default/acceleration notice)? | The September 18, 2017 notice adequately informed the Fishers of default, cure terms and reinstatement rights; exact mortgage wording not required. | Notice used permissive language (“may have the right to reinstate”) and therefore failed to mirror mortgage conditions, defeating acceleration. | Court: Notice sufficiently explained reinstatement and cure; strict verbatim language not required under Ohio judicial-foreclosure law. |
| 5. Were the Fishers’ counterclaims (FDCPA, invasion of privacy) viable? | Counterclaims fail because BONYM had standing and acted properly in filing foreclosure. | BONYM lacked standing (Green Tree was the holder), so foreclosure filing violated FDCPA and invaded privacy. | Court: Counterclaims fail because underlying standing/entitlement to enforce was established for BONYM. |
Key Cases Cited
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio 1977) (summary-judgment standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (moving party and reciprocal burdens on summary judgment)
- Allstate Ins. Co. v. Rule, 64 Ohio St.2d 67 (Ohio 1980) (answers to interrogatories may support summary judgment when signed and served)
- State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459 (Ohio 1981) (sworn copies attached to affidavits may satisfy Civ.R. 56(E))
- Natl. City Bank v. Fleming, 2 Ohio App.3d 50 (Ohio Ct. App.) (duplicates admissible unless authenticity of original is genuinely questioned)