Deutsche Bank Natl. Trust Co. v. Dvorak
2014 Ohio 4652
Ohio Ct. App.2014Background
- In 2006 Norma and Richard Dvorak executed a promissory note and mortgage with Chase; Deutsche Bank later filed a foreclosure complaint in 2012 claiming to hold the note and mortgage.
- Deutsche Bank moved for summary judgment; the Dvoraks opposed and argued Deutsche Bank lacked standing because it was not the note holder when the complaint was filed.
- Deutsche Bank submitted affidavits from Chase and Select Portfolio Servicing (SPS) employees averring possession of the original note and relying on business records; copies of the note and mortgage were attached.
- Affiants stated their knowledge derived from review of servicer business records but did not attach the underlying business records to their affidavits.
- The trial court granted summary judgment and ordered foreclosure; the appellate court reversed, holding Deutsche Bank failed to establish absence of a factual dispute on standing/possession at filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether movant established standing by showing it possessed the original note when suit was filed | Deutsche Bank argued affidavits and attached copies of the note/mortgage show it possessed the original note at filing | Dvoraks argued affidavits lack required personal-knowledge foundation and omitted the servicer business records relied upon, so they don’t prove possession at filing | Court held Deutsche Bank did not meet its initial summary judgment burden; affidavits were insufficient because they relied on unattached business records and did not show personal knowledge of possession at filing |
| Whether affidavits based on review of business records satisfy Civ.R. 56(E) absent attachment of the records | Deutsche Bank contended the affiants’ statements about business records were adequate | Dvoraks argued Civ.R. 56(E) requires sworn/certified copies of records attached to affidavits; otherwise testimony is hearsay | Court held Civ.R. 56(E) requires attaching the records relied upon; failure to attach undermined the affidavits and rendered them inadmissible to prove possession |
| Whether attached copies of the endorsed note and assignment establish possession at filing | Deutsche Bank relied on attached copies (including endorsed note) to prove entitlement | Dvoraks pointed out attachments did not show date or continuity of possession and assignment alone does not prove possession of the original note | Court held those documents did not establish when or whether Deutsche Bank possessed the original note at filing; assignment and copies were insufficient |
| Whether failure to demonstrate standing at commencement requires reversal/dismissal | Deutsche Bank argued summary judgment was proper because evidence showed possession | Dvoraks argued lack of standing at commencement requires dismissal of foreclosure claim | Court held lack of proof of standing at filing is fatal to movant’s entitlement to summary judgment and reversed the foreclosure judgment |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (appellate standard of review for summary judgment is de novo).
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (three-part summary judgment test).
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (movant’s initial burden in summary judgment and nonmovant’s duty to show specific facts).
- Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012) (a plaintiff must have standing at commencement of a foreclosure action; lack of standing requires dismissal).