Bayview Loan Servicing, L.L.C. v. Big Blue Capital Partners, L.L.C.
2016 Ohio 3433
Ohio Ct. App.2016Background
- Bayview Loan Servicing, LLC filed a foreclosure complaint on a mortgage and note after alleging default; Bayview asserted it had been assigned the mortgage and held the note (indorsed in blank).
- Mortgage chain in the record: MERS (as nominee for Taylor, Bean & Whitaker) assigned to Bank of America, N.A., which assigned to Bayview; Big Blue Capital Partners, LLC acquired its interest from the original mortgagor, Tami Lee Hillman.
- Bayview supported its summary-judgment motion with the affidavit of employee Dara Foye and a counsel firm document-custodian affidavit attesting that the original note (with an allonge) was in counsel’s possession and that Bayview was the holder.
- Big Blue opposed summary judgment, disputing Bayview’s standing/possession of the note, the sufficiency/authenticity of indorsements and assignments, lack of merger documentation for Bank of America, and Bayview’s compliance with HUD face-to-face meeting regulations (24 C.F.R. §203.604).
- The trial court granted Bayview summary judgment and a decree of foreclosure; Big Blue appealed raising two assignments of error (factual disputes re: possession/indorsements; and failure to satisfy conditions precedent/HUD requirements).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bayview had standing/possession of the note at filing | Bayview: Foye affidavit + loan documents (note indorsed in blank; assignments) show Bayview was holder | Big Blue: Foye affidavit lacks personal-knowledge foundation; indorsements/assignments may be invalid | Court: Foye affidavit and attached documents sufficiently show possession and holder status; no genuine issue of material fact |
| Whether Big Blue may challenge validity of indorsements/assignments | Bayview: Big Blue, as a nonparty to those instruments, lacks standing to attack them | Big Blue: Indorsements/assignments contradict prior proceedings and raise factual issues | Court: Big Blue lacks standing to challenge assignments/indorsements; cannot create triable issue |
| Whether Bayview needed to produce Bank of America merger documentation | Bayview: Merger language is immaterial because BAC Home Loans Servicing was never the mortgagee here | Big Blue: Bayview failed to authenticate successor status of Bank of America | Court: Merger documentation irrelevant given chain in record; no requirement to produce it |
| Whether Bayview complied with HUD face-to-face meeting requirement (conditions precedent) | Bayview: Big Blue lacks standing to assert HUD compliance failures as to original mortgagor; Bayview not required to prove it to Big Blue | Big Blue: Bayview failed to show compliance with 24 C.F.R. §203.604 re: original mortgagor, raising genuine issue | Court: Big Blue lacks standing to raise HUD-compliance claims that belong to the original borrower; assignment overruled |
Key Cases Cited
(There were no authorities cited in the opinion that have official reporter citations.)