Green Tree Servicing, L.L.C. v. Roberts
2013 Ohio 5362
Ohio Ct. App.2013Background
- Tammy Roberts purchased a Middletown, Ohio property in 2007, signed a promissory note to SunTrust, and Tammy and Allen granted a mortgage to SunTrust.
- The mortgage was assigned to MERS (as nominee for SunTrust); the promissory note was later assigned to Litton Loan Servicing, which modified the loan after the Roberts defaulted.
- Both the note and mortgage ultimately were reassigned to Green Tree Servicing, LLC, which sued the Roberts in 2011 for foreclosure.
- At bench trial, Green Tree presented testimony from a foreclosure supervisor (Thomas Clark) and sought to admit the promissory note, loan modification, payment history, and a notice of default; the court excluded documents created by Litton Loan and (effectively) the note and modification.
- Trial court granted judgment for the Roberts, citing problems authenticating signatures/assignments and lack of evidence the notice of default was sent or received; Green Tree appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of promissory note and loan modification (signature authentication) | Note and modification are admissible; defendants did not specifically deny Tammy's signature in pleadings, so signatures are presumed authentic under R.C. 1303.36 | Signatures/authenticity were challenged at trial | Court: Trial court abused discretion by excluding; defendants did not specifically deny signatures, so trial court erred in excluding on that basis. |
| Admissibility of records created by predecessor servicer (Litton) — payment history and notice of default | Documents qualify under Evid.R. 803(6) and the adoptive business‑records exception; Green Tree (assignee/servicer) may authenticate and rely on transferred records | Roberts argued double hearsay and lack of witness from Litton to authenticate | Court: Adopted and applied the adoptive business‑records exception; trial court erred by foreclosing Clark from testifying and excluding those records. |
| Reliance on challenged assignments / endorsements | Assignments/endorsements (even if imperfect) do not defeat Green Tree’s right to foreclose if it is holder or otherwise entitled to enforce | Roberts pointed to endorsements by same individual for different entities to impugn transfers | Court: Trial court erred to sua sponte rely on alleged defects in assignments; assignment irregularities do not relieve mortgagors of obligation and cannot alone defeat foreclosure. |
| Standing / right to enforce note (owner vs. holder/servicer) | Green Tree (in possession) was entitled to enforce as holder or nonholder entitled to enforce under R.C. 1303.31 even if Fannie Mae was owner | Roberts emphasized Fannie Mae as owner and argued only owner may enforce | Court: Because the note was wrongly excluded, trial court erred in concluding Green Tree lacked enforceability; factual determination should be made after admission. |
Key Cases Cited
- Dryden v. Dryden, 86 Ohio App.3d 707 (Ohio Ct. App.) (maker’s signature presumed authentic absent specific denial)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (standard for abuse of discretion review)
- Withers, 44 Ohio St.2d 53 (Ohio 1975) (trial court evidentiary discretion; appellate review deference)
- Great Seneca Fin. v. Felty, 170 Ohio App.3d 737 (Ohio Ct. App.) (adoptive business‑records exception recognized where assignee relies on transferred records)
- Johnson v. Ohio State Bd. of Cosmetology, 104 Ohio App.3d 662 (Ohio Ct. App.) (failure to obtain a ruling on admissibility treated as overruled)