Deutsche Bank Natl. Trust Co. v. Thomas
42 N.E.3d 1254
Ohio Ct. App.2015Background
- In 2005 Susan Thomas executed a promissory note and mortgage in favor of Long Beach Mortgage Company for property in Dublin, Ohio.
- In 2013 Deutsche Bank (later substituted by appellee) filed a foreclosure complaint alleging it was "in possession of and entitled to enforce" the note and attached a copy of the note bearing a blank indorsement/allonge.
- Appellant answered, denying appellee had possession of the original note and alleging lack of standing/real-party-in-interest.
- Appellee moved for summary judgment and supported it with an affidavit from Karter Nelson (document control officer for appellee’s servicer) and a non‑sworn certification from plaintiff’s counsel; appellant moved to strike Nelson’s affidavit.
- The trial court denied the motion to strike and granted summary judgment to appellee; the appellate court reverses, holding appellee failed to show as a matter of law that it possessed the original blank‑indorsed note and thus was entitled to enforce it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved it was a "person entitled to enforce" the note (possession of negotiable instrument) | Appellee claimed the note was payable to bearer (blank indorsement) and that it was the holder; relied on Nelson affidavit and copy of the note attached to complaint | Thomas argued appellee failed to show actual possession of the original note and Nelson lacked personal knowledge to prove possession | Reversed — affidavit insufficient; genuine issue of material fact existed whether appellee possessed the original note and was entitled to enforce it |
| Sufficiency of Nelson affidavit to establish possession/authentication of original note | Nelson averred he was familiar with loan records and stated appellee was the holder/owner and that attached copies were true copies | Thomas argued Nelson gave legal conclusions without factual detail on how he knew appellee possessed the original note; attachments were merely court‑stamped copies | Held: Nelson’s statements were legal conclusions and lacked facts showing personal knowledge of possession; insufficient under Civ.R. 56 |
| Whether counsel’s non‑sworn certification that plaintiff possessed the original note could supply missing evidence | Plaintiff’s counsel certified (not under oath) that plaintiff held the original note and would produce it | Thomas contended the certification was not sworn evidence and thus not cognizable for summary judgment | Held: Certification was not a sworn, admissible Civ.R. 56(C) source and could not substitute for competent evidence |
| Whether trial court properly granted summary judgment given the record | Plaintiff argued documentary attachments plus affidavit removed any genuine issue of possession and warranted judgment as a matter of law | Thomas maintained outstanding factual dispute about possession and chain of custody of the original note | Held: Summary judgment improper because reasonable minds could find a factual dispute about possession and standing; case remanded |
Key Cases Cited
- Andersen v. Highland House Co., 93 Ohio St.3d 547 (Ohio 2001) (de novo standard for appellate review of summary judgment)
- Gilbert v. Summit County, 104 Ohio St.3d 660 (Ohio 2004) (summary judgment standard; moving party must show no genuine issue of material fact)
- Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482 (Ohio 1998) (inferences drawn from evidentiary materials must be construed in favor of nonmoving party)