Deutsche Bank v. Holloway
2013 Ohio 5194
Ohio Ct. App.2013Background
- On Oct. 1, 2005, Holloways signed a $120,000 promissory note secured by a mortgage on their home; Intervale Mortgage Corp. was the lender and MERS was listed as mortgagee on the mortgage.
- The Note was endorsed from Intervale to Decision One, then Decision One endorsed the Note in blank, making the holder bearer by possession.
- In 2008, MERS assigned the Mortgage to Deutsche Bank National Trust Company, as Trustee; a second 2010 assignment listed Deutsche Bank as Trustee for Morgan Stanley Capital I Inc. Trust 2006-HE2; certificates were involved.
- Deutsche Bank filed foreclosure on Apr. 1, 2011 asserting it held the Note and Mortgage; Holloways answered; mediation failed; case returned to active docket and Deutsche Bank moved for summary judgment.
- The trial court granted summary judgment; Holloways objected; on appeal the court held Deutsche Bank failed to prove standing to sue because theBrown affidavit did not conclusively show current holder of the Note; case reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Deutsche Bank had standing to foreclose | Holloways argue DB lacks standing | Deutsche Bank contends it is holder of Note/mortgage | Summary judgment improper; standing not proven |
Key Cases Cited
- BAC Home Loan Servicing, LP. v. McFerren, 2013-Ohio-3228 (9th Dist. Summit 2013) (holding a plaintiff must hold the note and mortgage to have standing)
- Fed. Home Loan Mortgage Corp. v. Schwartzwald, 2012-Ohio-5017 (Ohio 2012) (standing requirements for foreclosure actions; indicate failure to prove standing requires dismissal)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio 1977) (summary judgment standard; de novo review applying Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (burden on movant to show no genuine issues of material fact)