Cent. Mtge. Co. v. Elia
2011 Ohio 3188
Ohio Ct. App.2011Background
- Elias executed a mortgage and note for $61,600 to LoanCity.com for property in Akron, Ohio.
- Mortgage was assigned to Central Mortgage by MERS as nominee; Elias defaulted and Central Mortgage filed foreclosure.
- Elias moved to dismiss for lack of standing; trial court denied and later Central Mortgage obtained summary judgment for the amount due.
- Central Mortgage relied on an affidavit from its VP, the note, mortgage, and an assignment showing February 2009 transfer.
- Elias challenged the affidavit, standing, and notice under paragraph 22; the court sustained the notice issue but found standing established.
- Court affirmed in part, reversed in part, and remanded for further proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice prior to acceleration under paragraph 22 | Elias contends no prior notice was shown before acceleration. | Central Mortgage asserts notice and prerequisites were satisfied. | Issue sustained; material fact remains regarding whether notice was given. |
| Standing to sue | Elias asserts Central Mortgage lacked current ownership of note/mortgage. | Central Mortgage contends it holds the note and mortgage via assignment and possession. | Issue overruled; Central Mortgage shown standing as real party in interest. |
| Entitlement to summary judgment on the record | Elias argues summary judgment was improper due to unresolved notice issue. | Central Mortgage argues proper notice was provided and that it is entitled to judgment. | Issue sustained in part; due to unresolved notice issue, summary judgment was not proper. |
Key Cases Cited
- Deutsche Bank Natl. Trust Co. v. Traxler, 2010-Ohio-3940 (9th Dist. No. 09CA009739) (standing tied to assignment and possession; real party in interest)
- LaSalle Bank, N.A. v. Kelly, 2010-Ohio-2668 (9th Dist. No. 09CA0067-M) (notice before acceleration as a condition precedent; insufficient notice defeats summary judgment)
- GMAC Mortgage, L.L.C. v. Jacobs, 2011-Ohio-1780 (9th Dist. No. 24984) (written notice of default given in accordance with terms supports summary judgment when debtor does not dispute)
- Bank One, N.A. v. Lytle, 2004-Ohio-6547 (9th Dist. No. 04CA008463) (personal knowledge requirement satisfied when affiant has control of records)
- Bank One, N.A. v. Swartz, 2004-Ohio-1986 (9th Dist. No. 03CA008308) (affidavit compliance with Civ.R. 56(E) shown by control of records and specific documents)
- Target Natl. Bank v. Enos, 2010-Ohio-6307 (9th Dist. No. 25268) (notice considerations and related issues in foreclosure)
- First Financial Bank v. Doellman, 2007-Ohio-222 (12th Dist.) (notice and acceleration prerequisites in mortgage instruments)
- GMAC Mortgage, L.L.C. v. Jacobs, 2011-Ohio-1780 (9th Dist. No. 24984) (see above (duplicate entry for emphasis))
- CitiMortgage, Inc. v. Elia, 2011-Ohio-2499 (9th Dist. No. 25482) (notice and acceleration language in mortgage analyzed for Dresher burden)