Deutsche Bank Natl. Trust Co. v. Holden
2014 Ohio 1333
Ohio Ct. App.2014Background
- In 2005 Glenn Holden executed a $69,300 promissory note to Novastar secured by a mortgage naming MERS as nominee; MERS later assigned the mortgage to Deutsche Bank.
- Deutsche Bank filed a foreclosure complaint in 2011 attaching a copy of the promissory note that lacked any indorsement and stating it was a true copy of the original.
- In support of summary judgment, Deutsche Bank produced affidavits and a different copy of the note (via its servicer Chase) that contained a blank indorsement from Novastar; deposition testimony suggested an unendorsed image may have been mistakenly attached to the complaint.
- The Holdens counterclaimed (FDCPA, OCSPA, fraud, invasion of privacy) and contested Deutsche Bank's standing and possession of the note when the complaint was filed.
- The trial court granted Deutsche Bank summary judgment on the foreclosure claim and on the Holdens' counterclaims; the Holdens appealed.
Issues
| Issue | Plaintiff's Argument (Deutsche Bank) | Defendant's Argument (Holden) | Held |
|---|---|---|---|
| Whether Deutsche Bank possessed the original note at filing (standing/real party in interest) | De bank produced servicer affidavit and copy of note showing blank indorsement and asserted it purchased the loan and had the note via servicer | Inconsistent copies (one attached to complaint unindorsed, one produced later indorsed) create a genuine issue whether DB was holder at filing | Court: Genuine issue of material fact exists; trial court erred granting summary judgment on foreclosure |
| Whether Deutsche Bank could be a non-holder in possession entitled to enforce (alternative enforcement theory) | DB argued it could enforce as non-holder in possession | Holdens responded DB did not raise this below; cannot be raised first on appeal | Court: DB waived this argument by not raising it below; may not be considered on appeal |
| Whether the servicer affidavit (Theodoro) was made on personal knowledge | DB relied on Theodoro affidavit to show possession and chain; argued affidavit sufficient | Holdens argued affidavit lacked personal knowledge and failed Civil Rule 56(E) standard | Court: Moot as to disposition on first issue; not addressed on merits (declined to reach) |
| Whether DB satisfied mortgage condition precedent (acceleration notice under ¶22) | DB contended it complied or issue was not outcome-determinative | Holdens contended acceleration letter did not meet mortgage ¶22 requirements | Court: Not ripe given reversal on standing; declined to address now |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (standard of review for summary judgment is de novo)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (three-part test for summary judgment under Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (movant's and nonmovant's burdens on summary judgment)
- Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012) (standing and real party in interest in foreclosure actions)