Fifth Third Mtge. Co. v. Bihn
2012 Ohio 637
Ohio Ct. App.2012Background
- FTMC sued Bihn for foreclosure on a note allegedly originated April 4, 1983, with a mortgage on the Vandalia property.
- Complaint identified CFSL as the lender and mortgagee, but FTMC asserted it held the note and mortgage via assignment dated November 23, 2009 and recorded 11/30/2009.
- Bihn admitted default and challenged FTMC’s standing/ownership, arguing the assignment to FTMC was invalid because the assignor ceased to exist in 1998 and questioned chain of title.
- FTMC moved for summary judgment; FTMC submitted affidavits from Ross (custodian of records) and Griffith (signatory to the assignment), asserting a valid chain of ownership and that the mortgage/note were properly assigned to FTMC.
- Trial court granted summary judgment finding FTMC had a valid lien; on appeal, the court addressed whether FTMC was the real party in interest and whether it was a successor in interest to CFSL.
- Court held that, based on competent evidence, FTMC was the real party in interest and that Griffith’s affidavit established a valid chain of succession from CFSL to FTMC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is FTMC the real party in interest to enforce the note? | Bihn contends FTMC is not owner/holder due to defective assignment. | Bihn argues the assignment to FTMC is invalid and FTMC lacks standing. | FTMC is the real party in interest; assignment supports enforcement. |
| Is FTMC a successor in interest to Citizens Federal Savings and Loan Association of Dayton? | FTMC established a chain of succession via mergers/name changes up to FTMC. | Bihn argues insufficient evidence of proper successor chain. | FTMC proves successor-in-interest status; standing not challenged. |
Key Cases Cited
- Bank of America, N.A. v. Miller, 194 Ohio App.3d 307 (2011) (holder vs. nonholder proof; need proper indorsements for negotiation)
- Federal Home Loan Mortgage Corp. v. Schwartzwald, 194 Ohio App.3d 644 (2011) (assignment of mortgage can transfer note where intent to transfer both is shown)
- Bank of New York v. Dobbs, 5th Dist. Knox No. 2009-CA-2, 2009-Ohio-4724 (2009) (mortgage-note transfer without endorsement can still transfer both when intended)
- Byrd, 178 Ohio App.3d 285 (2008) (standing can be cured by assignment prior to judgment)
- Sugarcreek Twp. v. Centerville, 184 Ohio App.3d 480 (2009) (standing as threshold issue; real party in interest analysis)