2013 Ohio 5848
Ohio Ct. App.2013Background
- Deutsche Bank filed a foreclosure complaint against Santisi on Dec 29, 2006, alleging it held the note and that the mortgage defaulted.
- The mortgage was attached, re-recorded in 2006, and indicated First Franklin as the lender; Deutsche Bank claimed the note was subsequently assigned to it.
- An affidavit of status of account identified a default balance of $285,000 and was filed on Feb 12, 2007, supporting the default judgment motion.
- A default Judgment and Decree in Foreclosure was entered on Jun 14, 2007; an Amended Decree in Foreclosure nunc pro tunc was issued Jul 1, 2009 to include claimed advances.
- Santisi later filed motions to stay and mediate, then a Civ.R. 60(B) motion to vacate arguing lack of standing, which the trial court denied on Apr 12, 2013.
- The court held Deutsche Bank had standing through possession of the note with a blank indorsement and the complaint’s allegations admitted, affirming the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose and trial court jurisdiction | Santisi lacked standing; DBN may not invoke jurisdiction without proper note/mortgage interest. | DBN lacked standing due to timing of assignment and Schwartzwald; proceedings void ab initio. | DBN had standing; judgment affirmed |
| Effect of Civ.R. 60(B) on standing challenge | 60(B) arguments barred; standing admitted by complaint suffices. | Civ.R. 60(B) may challenge standing timely and meritoriously. | 60(B) challenge not timely or meritorious; affirmed |
Key Cases Cited
- Cent. Mtge. Co. v. Webster, 2012-Ohio-4478 (5th Dist. Ohio 2012) (holding that holder of the note has standing to foreclose)
- U.S. Bank, N.A. v. Turner, 2012-Ohio-3413 (6th Dist. Ohio 2012) (holding that pleading that the plaintiff is the holder of the note satisfies Civ.R. 8(A))
- Fed. Home Loan Mtge. Corp. v. Rufo, 2012-Ohio-5930 (11th Dist. Ashtabula 2012) (blank indorsement creates bearer paper; supports standing)
- Schwartzwald, 134 Ohio St.3d 13 (2012-Ohio-5017) (standing may be raised to invoke jurisdiction, but it's distinguished from lack of subject-matter jurisdiction)
- Countrywide Home Loans Servicing, L.P. v. Nichpor, 2013-Ohio-2083 (Ohio Sup. Ct. 2013) (after judgment, standing challenges are not treated as pending)