Fifth Third Mtge. Co. v. Bell
2013 Ohio 3678
Ohio Ct. App.2013Background
- In 1997, Greg and Marcia Bell bought a home in London, Ohio, financed by a promissory note for $212,000 and an open-end mortgage.
- The note was originally held by State Savings Bank and assigned to Fifth Third Mortgage Company on August 15, 2011.
- The Bells defaulted in late 2011; FTMC sent a notice of default and intent to accelerate on January 4, 2012.
- FTMC filed foreclosure on February 29, 2012, attaching the unendorsed original note, the mortgage, and an assignment showing FTMC’s pre-suit interest.
- Bell challenged FTMC’s standing; FTMC later filed an affidavit with a note showing two endorsements, and summary judgment was granted on October 22, 2012.
- Marcia Bell filed for Chapter 13 bankruptcy, so only Greg Bell appealed; final judgment and foreclosure decree entered January 16, 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did FTMC have standing at filing? | FTMC had a pre-suit interest via assignment and possession. | Bell argued FTMC lacked proper endorsement/standing at filing. | FTMC had standing at filing. |
| Did FTMC prove compliance with conditions precedent before filing? | FTMC complied with notice and cure provisions prior to suit. | Bell argued failure to provide required cure period/notice. | FTMC complied with conditions precedent. |
| Were discovery and defenses, including unclean hands and mitigation, properly addressed? | No need for further discovery; defenses devoid of merit. | Bell needed time to develop defenses via discovery. | No abuse of discretion; no genuine issues on unclean hands or mitigation; discovery not warranted. |
Key Cases Cited
- Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (Ohio Supreme Court 2012) (standing requires pre-filing interest; post-filing events cannot cure standing)
- Kolenich v. BAC Home Loans Servicing, L.P., 194 Ohio App.3d 777 (Ohio App. 12th Dist. 2011) (Civ.R. 56(F) requires specific affidavit basis for discovery continuance)
- Fifth Third Mortgage Co. v. Wizzard, 2013-Ohio-3084 (Ohio App. 12th Dist. 2013) (foreclosure may be dismissed for failing to provide required notice)
- Deutsche Bank Natl. Trust Co. v. Gardner, 2010-Ohio-663 (Ohio App. 8th Dist. 2010) (holder/nonholder in possession can enforce note under U.C.C.)
- CitiMortgage, Inc. v. Parrish, 2012-Ohio-3778 (Ohio App. 5th Dist. 2012) (bank not required to modify absent contract terms; foreclosure not per se bad faith)
- GMAC Mortgage, LLC v. Jackson, 2013-Ohio-2150 (Ohio App. 3d Dist. 2013) (oral modification evidence insufficient to prove unclean hands; contract terms govern)