2015 Ohio 4071
Ohio Ct. App.2015Background
- In Oct. 2009 Long executed a promissory note to United Wholesale and a mortgage naming MERS as nominee; Long later defaulted.
- GMAC Mortgage, successor by merger to GMAC Mortgage Corporation, filed a foreclosure complaint in Mar. 2013 attaching the original note endorsed in blank (United Wholesale → Ally Bank → GMAC → endorsed in blank).
- Four months after filing, GMAC assigned the mortgage to Ocwen; the trial court permitted Ocwen to substitute in as plaintiff.
- Ocwen moved for summary judgment, supported by an affidavit from Michael C. Johnston, a "Default Specialist," who averred Ocwen possessed the original note endorsed in blank and attached copies of the loan documents and assignments.
- Long argued lack of standing because GMAC was not the note holder when the complaint was filed and challenged Johnston’s affidavit as lacking personal knowledge; the magistrate and trial court rejected these arguments and granted summary judgment to Ocwen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to commence foreclosure | Ocwen (as successor to GMAC) had standing because GMAC had an interest in the mortgage when the complaint was filed and Ocwen later possessed the original endorsed-in-blank note | Long: GMAC lacked standing at filing because it was not the holder of the note (note endorsed in blank meant Ocwen, not GMAC, was holder) | Court: GMAC had standing via its interest in the mortgage at filing; post-filing assignment to Ocwen did not invalidate standing since mortgage interest existed when suit began |
| Sufficiency of affidavit under Civ.R. 56(E) | Johnston’s affidavit showed personal knowledge by virtue of his position, access to records, and attached true copies of documents | Long: Affidavit fails to explain basis of personal knowledge and does not state Johnston compared copies to originals | Court: Affidavit adequate; personal knowledge can be inferred from affiant’s role and statements; explicit comparison to originals not required when inference is reasonable |
| Authentication of copies of loan documents | Copies attached to Johnston affidavit are "true and correct" and Johnston avers Ocwen has original note | Long: Copies unauthenticated because affiant did not state he reviewed originals and compared them to copies | Court: Authentication sufficient—statements that Ocwen possesses originals and that attached copies are true and correct permit reasonable inference of comparison |
| Burden on nonmoving party at summary judgment | Ocwen met its burden via affidavit and documents; any dispute required Long to produce contrary evidence | Long: Raised objections but produced no evidentiary rebuttal to Johnston’s assertions | Court: Because Long produced no conflicting evidence, summary judgment proper for Ocwen |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (summary judgment reviewed de novo)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (movant’s burden in Civ.R. 56)
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367 (Ohio 1998) (summary judgment standard; construing evidence in favor of nonmovant)
- Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (Ohio 2012) (standing in foreclosure requires interest at commencement of suit)
- CitiMortgage, Inc. v. Patterson, 984 N.E.2d 392 (Ohio App. 2012) (interpreting Schwartzwald to allow standing by either holder of the note or assignee of the mortgage at filing)