Everbank v. Katz
2014 Ohio 4080
Ohio Ct. App.2014Background
- Everbank sued Herbert Katz for breach of a $200,000 promissory note and sought foreclosure after Katz defaulted; the note was originally payable to AmericaHomeKey, Inc.
- Two allonges accompanied the note: AmericaHomeKey endorsed to Ohio Savings Bank (AmTrust), and the FDIC (as receiver of AmTrust) endorsed to Everbank.
- A magistrate granted summary judgment for Everbank; the trial court adopted the magistrate’s decision over Katz’s objections.
- Katz challenged the bank’s proof of default (arguing the affidavit lacked personal knowledge) and disputed the chain of title to the note and mortgage.
- The bank submitted an assistant vice president’s affidavit attesting to personal knowledge and reliance on bank business records; the affidavit and records were the basis for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Affidavit competence under Civ.R. 56(E) | Affiant had personal knowledge, reviewed and verified business records | Katz: affidavit lacked personal knowledge about how bank obtained the note from FDIC | Court: Affidavit met Civ.R. 56(E); statements were uncontroverted and sufficient |
| 2. Admissibility of business records (Evid.R. 803(6)) | Records were regularly kept, made by persons with knowledge, and verified by affiant | Katz: business records inadmissible hearsay | Court: Affidavit established the Evid.R. 803(6) prerequisites; records admissible |
| 3. Chain of title to the note (endorsements/allonges) | Allonges show sequential endorsements: AmericaHomeKey → Ohio Savings/AmTrust → FDIC (receiver) → Everbank | Katz: no proof how FDIC obtained note from AmTrust; undated allonge breaks chain | Court: FDIC obtained rights as receiver and could endorse; undated allonge valid; chain established |
| 4. Chain of title to the mortgage / MERS authority | Assignment shows MERS as nominee and mortgagee with authority to assign | Katz: challenges how MERS obtained/assigned mortgage; contends lack of standing | Court: Mortgagor lacks standing to directly challenge assignments; MERS had authority as nominee and mortgagee |
Key Cases Cited
- (No state or federal published-reporter decisions with official reporter citations were cited in the opinion that meet the required format.)