CitiMortgage, Inc. v. Nyamusevya
69 N.E.3d 1264
Ohio Ct. App.2016Background
- In 2002 Nyamusevya executed a note and first mortgage to Capitol (original principal $136,700) on property in Columbus, Ohio; the mortgage was recorded.
- Capitol assigned the mortgage and endorsed the note to ABN AMRO; ABN later merged into CitiMortgage (Citi).
- Citi filed foreclosure in Franklin C.P. Sept. 14, 2010, identifying itself as “successor by merger to ABN AMRO Mortgage Group, Inc.” Citi attached the mortgage and an assignment but initially said a copy of the note was not available; it later filed copies including a note indorsed in blank.
- Cindy Schneider, a Citi operations analyst, submitted an affidavit and business records (Consolidated Note Report, collateral file copies, certificate of merger) in support of summary judgment asserting Citi had standing and that the unpaid balance was $98,452.56.
- Nyamusevya (pro se) filed multiple motions and a counterclaim and submitted his own affidavit alleging a $26,000 lump-sum principal payment in 2002 that is not reflected in Citi’s payment history; he argued Citi lacked standing and that the payoff was incorrect.
- Trial court granted summary judgment and entered decree of foreclosure; on appeal the Tenth District affirmed standing but found a genuine factual dispute about the amount owed and remanded to determine the correct payoff.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to enforce note and foreclose | Citi: alleged successor-by-merger to ABN and later produced merger docs and note copies; may prove standing after filing | Nyamusevya: Citi failed to attach note and merger docs to complaint, so lacked standing at filing per Schwartzwald | Court: Under Horn (clarifying Schwartzwald), proof of standing may be submitted after filing; Citi had standing when it filed and by summary-judgment evidence |
| Sufficiency of complaint / motions to dismiss | Citi: caption and allegation that it is holder/successor by merger sufficiently pled standing | Nyamusevya: complaint should be dismissed for failing to attach note and merger documentation | Court: Complaint adequate under Horn and Schwartzwald; dismissal denied |
| Amount due on the note | Citi: Schneider affidavit plus Consolidated Note Report shows principal $98,452.56 and unpaid interest from May 1, 2010 | Nyamusevya: his affidavit alleges a $26,000 payment in Aug 2002 not in the report, creating a material dispute about balance | Court: Schneider’s evidence established entitlement generally, but Nyamusevya’s specific affidavit created a genuine factual dispute about the payoff; remand to determine amount owed |
Key Cases Cited
- Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012) (plaintiff must have standing at commencement of suit; lack of standing at filing requires dismissal)
- Wells Fargo Bank, N.A. v. Horn, 142 Ohio St.3d 416 (2015) (clarifies Schwartzwald: proof of standing may be submitted after filing; plaintiff must have standing at time suit commenced but need not attach proof to complaint)
- Comer v. Risko, 106 Ohio St.3d 185 (2005) (summary-judgment standard is de novo review)
- New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39 (2011) (discusses Civ.R. 56 burden-shifting and summary-judgment requirements)