Ditech Fin., L.L.C. v. Bishop
2021 Ohio 2175
| Ohio Ct. App. | 2021Background
- In 2005 Bishop executed a promissory note for $76,500 secured by a mortgage on 229 E Wheeling St., Lancaster, OH.
- Ditech Financial (predecessor to NewRez) filed a foreclosure complaint in Feb. 2019 alleging default and a balance due of $62,095.86 plus interest.
- At close of pleadings Ditech assigned the mortgage to NewRez and NewRez was substituted as plaintiff.
- NewRez moved for summary judgment supported by affidavits (Mark Kerns, Krystyn Maple) and attached records: note, mortgage, assignment chain, payment history, and notices of default/acceleration.
- Bishop opposed, arguing (1) plaintiff lacked possession/standing to enforce the original note and (2) required notice of default/acceleration was not properly given (wrong address / defective process).
- Trial court granted summary judgment and ordered foreclosure; Bishop appealed, raising the single assignment that genuine issues of material fact remained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Possession/standing to enforce the original note | Affidavits and attached Note Possession Statement show Ditech possessed the original indorsed note when suit was filed and NewRez currently holds it; custodian possession does not negate holder status | Note Possession Statement indicates the note was not in plaintiff's physical possession; chain of title / standing is therefore faulty | Court credited Kerns/Maple affidavits, found Ditech/NewRez had possession/standing (custodian possession acceptable); no contrary evidence — summary judgment affirmed |
| Compliance with condition precedent: notice of default/acceleration | Affidavits and exhibits show notice(s) mailed Nov. 30, 2018 to the property address and an additional address; payment history and records show acceleration was exercised | Notices were sent to the wrong address (303 E Wheeling vs 229 E Wheeling); duplicate notices or misaddressing void the condition precedent | Court found notices were mailed to both addresses, Bishop admitted receipt of at least one; double mailing not fatal and condition precedent was satisfied — summary judgment affirmed |
Key Cases Cited
- Bonacorsi v. Wheeling & Lake Erie Ry. Co., 767 N.E.2d 707 (Ohio 2002) (summary-judgment review is de novo)
- Brown v. Scioto Cty. Bd. of Commrs., 622 N.E.2d 1153 (Ohio App. 1993) (de novo review requires independent review without deference)
- Troyer v. Janis, 971 N.E.2d 862 (Ohio 2012) (Civ.R. 56(C) summary-judgment standard)
- Tornado Techs., Inc. v. Quality Control Inspection, Inc., 977 N.E.2d 122 (Ohio App. 2012) (appellate courts afford no deference to trial court summary-judgment rulings)