GMAC Bank v. Bradac
2017 Ohio 7888
| Ohio Ct. App. | 2017Background
- In 2003 Emily Bradac took a $328,500 construction loan from GMAC Mortgage with a construction rider requiring completion by October 25, 2004 and prescribing defaults for extended stoppages or unresolved liens. The loan matured ultimately on April 25, 2007 after extensions.
- Construction was not completed; Bradac discharged the builder (Kohl) in November 2005 and a mechanics’ lien was filed. Bradac later sued Kohl; that case remains pending.
- GMAC Bank filed a foreclosure action in June 2009 after GMAC Mortgage assigned the note; the note later was endorsed and came into possession of Residential Funding Corporation (RFC), which was substituted as plaintiff in 2013. RFC produced an affidavit from Ocwen’s employee (K. Ortwerth) stating RFC had possession of the note endorsed in blank since December 2009.
- The trial court granted summary judgment for RFC on foreclosure and granted summary judgment for GMAC Mortgage (third‑party defendant) on Bradac’s breach claim. Bradac appealed, raising errors about excluded evidence, standing/merits of foreclosure, and the breach claim against GMAC Mortgage.
- The court rejected Bradac’s evidentiary submissions (internet printouts, unauthenticated emails, unsigned deposition transcript) as not properly authenticated or qualified as business records, and found RFC had standing as holder of the note and mortgage, Bradac was in default, and notice conditions were satisfied.
Issues
| Issue | Plaintiff's Argument (Bradac) | Defendant's Argument (RFC/GMAC) | Held |
|---|---|---|---|
| Admissibility of exhibits & deposition | Court erred in striking internet printouts, documents, and unsigned deposition relied on to create factual disputes | Documents and deposition were unauthenticated, not foundationally shown as business records, and deposition unsigned/not certified; trial court properly struck them | Court affirmed exclusion: exhibits and deposition were inadmissible without proper authentication/foundation |
| Standing to foreclose / sufficiency for summary judgment | RFC lacks standing and failed to show chain of title/ownership of note; genuine issues of fact as to default and notice | GMAC/RFC showed original plaintiff (GMAC Bank) had standing at filing; RFC as current holder (possession of blank-endorsed note) is real party in interest; Ortwerth affidavit shows default and amount due; notice sent per mortgage terms | Court held GMAC Bank had standing to commence suit; RFC shown as current holder by possession of blank-endorsed note; Bradac in default; notice requirement met; summary judgment for RFC affirmed |
| Notice of default | Bradac never received default notice because it was mailed to property she did not occupy | Mortgage required notice to property address absent substitute; RFC produced certified‑mail/default notice evidence showing it was sent to property address | Court held notice requirement satisfied and Bradac’s denial of receipt did not create a genuine issue |
| Breach claim vs GMAC Mortgage (bankruptcy effect) | GMAC Mortgage breached draw/payment obligations; claim not barred because Bradac lacked notice of GMAC’s bankruptcy | GMAC Mortgage filed bankruptcy; Bradac had notice via counsel and status conference but failed to file a proof of claim before confirmation, so claim discharged | Court held Bradac had notice and failed to timely file in bankruptcy; claim discharged by confirmation; summary judgment for GMAC Mortgage affirmed |
Key Cases Cited
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (standard for summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (movant’s burden in summary judgment and reciprocal burden on nonmovant)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (appellate de novo review of summary judgment)
- Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012) (standing determined at commencement of foreclosure)
- U.S. Bank N.A. v. Marcino, 181 Ohio App.3d 328 (2009) (note negotiation operates as equitable assignment of mortgage)
- Royse v. Dayton, 195 Ohio App.3d 81 (2011) (authentication requirement for documentary evidence)