GMAC Mtge., L.L.C. v. Waller
2013 Ohio 4376
Ohio Ct. App.2013Background
- In July 2006, Charles Waller borrowed $739,200 to buy a Solon, Ohio property and executed an adjustable-rate note secured by a mortgage naming MERS as nominee for Beach First National Bank.
- GMAC Mortgage, L.L.C. filed a foreclosure action on August 31, 2011, later amended September 26, 2011, attaching the note, a loan modification, the mortgage, and assignments.
- The note history includes endorsements across allonges: Beach First National Bank to Greenpoint to GMAC, with an additional endorsement from Greenpoint to GMAC.
- The mortgage was assigned from MERS to GMAC in July 2007 and subsequently recorded; the complaint alleged these pre-suit assignments gave GMAC standing to foreclose.
- Wallers argued GMAC lacked standing and that assignments were invalid or occurred post-filing, and that MERS’s role rendered the mortgage unenforceable.
- The trial court granted GMAC summary judgment; the Wallers appealed challenging GMAC’s standing and the validity of the assignments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does GMAC have standing to foreclose? | GMAC demonstrated proper assignment of note and mortgage to GMAC. | Wallers challenge the assignments as invalid or insufficient to confer standing. | GMAC had standing to foreclose. |
| Are the assignments and chain of title valid pre-suit? | Note and mortgage were properly assigned before filing and recorded; pre-suit assignments forecloseable. | Assignments were invalid or occurred after filing, undermining rights to foreclosure. | Assignments predated filing; chain of title valid. |
| Does lack of recording or MERS status affect foreclosure rights? | Recording is not a condition precedent to foreclose; MERS assignments are enforceable. | Lack of recording or MERS involvement undermines enforceability. | Recording not required; MERS-based assignment valid for foreclosure. |
Key Cases Cited
- Deutsche Bank Natl. Trust Co. v. Ingle, null (8th Dist. Cuyahoga No. 92487, 2009-Ohio-3886) (party may foreclose on defaulted loan when mortgage is assigned through MERS as nominee)
- BAC Home Loans Servicing, L.P. v. Hall, null (12th Dist. Warren No. CA2009-10-135, 2010-Ohio-3472) (standing can be established through mortgage assignment or note holder)
- Fed. Home Loan Mortgage Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012-Ohio-5017) (standing to sue determined at commencement; post-filing cures disregarded)
- CitiMortgage, Inc. v. Patterson, null (8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894) (standing requires mortgage assignment or note holder at filing)
- Bridge v. Aames Capital Corp., null (N.D. Ohio No. 1:09 CV 2947, 2010) (foreclosure by holder of the note when homeowners default)
- United States Bank Natl. Assn. v. Morales, null (11th Dist. Portage No. 2009-P-0012, 2009-Ohio-5635) (recording of an assignment not a condition precedent to foreclosure)
- Morales, null (11th Dist. Portage No. 2009-P-0012, 2009-Ohio-5635) (recording not required for foreclosure rights)
- Traxler, null (12th Dist. Warren No. 09CA009739, 2010-Ohio-3940) (treats assignments and mortgage transfers in foreclosure context)
- In re Wallers, null (8th Dist. Cuyahoga No. 99457, 2013) (this opinion affirms summary judgment for GMAC)