Fifth Third Mtge. Co. v. Orebaugh
2013 Ohio 1730
Ohio Ct. App.2013Background
- Orebaugh signed a promissory note secured by a mortgage on her real property in 2007, later modified in 2009.
- Fifth Third Mortgage Company filed a foreclosure action in Butler County Common Pleas on August 2, 2010, and was granted summary judgment.
- Orebaugh appealed raising two assignments of error related to failure to join parties and to alleged default issues.
- Fifth Third stated it is the holder of the note and mortgage, while Fannie Mae allegedly owns them.
- The court held the current holder is the real party in interest and that there were no genuine issues on default and tendered payments, supporting summary judgment.
- The court found no proven compliance with HUD/FHA notice requirements or incorporation of those regulations into the loan documents, and affirmed summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to join Fannie Mae/US as parties bar summary judgment | Orebaugh argues nonjoinder of owner forecloses relief | Fifth Third asserts it is the holder and proper party; owner status is not required for standing | No; current holder entitled to foreclose; nonjoinder not fatal |
| Whether there were genuine issues about default notice and tendered payments | Notice was improper; insufficient tender of payments | Fifth Third presented proper notice and evidence of default | No genuine issue; summary judgment proper on default/tender |
| Whether HUD regulations affected foreclosure notice requirements | Regulations controlled and not complied with | Regulations not proven to be incorporated into loan documents | No; regulatory notices not proven to be applicable or incorporated |
Key Cases Cited
- Chase Manhattan Mortg. Corp. v. Urquhart, 12th Dist. Nos. CA2004-04-098, CA2004-10-271, 2005-Ohio-4627 (Ohio 2005) (summary judgment standard; de novo review on appeal)
- BAC Home Loans Servicing, LP v. Kolenich, 2012-Ohio-5006 (Ohio 2012) (real party in interest; holder may foreclose)
- Everhome Mtge. Co. v. Rowland, 2008-Ohio-1282 (Ohio 2008) (foreclosure standing of holder/entitled to enforce)
- Deutsche Bank Natl. Trust Co. v. Sexton, 2010-Ohio-4802 (Ohio 2010) (real party in interest; proper plaintiff in foreclosure)
- CitiMortgage, Inc. v. Carpenter, 2012-Ohio-1428 (Ohio 2012) (HAMP/servicing regulations; notice and compliance issues)
- First Financial Bank v. Doellman, 2007-Ohio-222 (Ohio 2007) (conditions precedent; Civ.R. 9(C) pleading standards)
- Hillstreet Fund III, L.P. v. Bloom, 2010-Ohio-2961 (Ohio 2010) ( Civ.R. 56; self-serving affidavits insufficient)