IndyMac Fed. Bank, FSB v. OTM Invests., Inc.
2011 Ohio 3742
Ohio Ct. App.2011Background
- IndyMac Federal Bank, FSB filed a foreclosure action against OTM Investments and others on November 5, 2008, attaching the note and mortgage but not evidence of assignment.
- Anthony, pro se, argued IndyMac was not the lawful holder or assignee and thus had no right to foreclose.
- IndyMac later filed an assignment dated November 14, 2008 showing Mortgage Electronic Registration Systems, as nominee for All State Home Mortgage, assigned the mortgage to IndyMac.
- The trial court granted summary judgment for IndyMac on June 17, 2009; notice of appeal was filed in the trial court and eventually transmitted to the appellate court in May 2010; sheriff’s sale attempts were stayed pending appeal.
- Anthony asserted four errors: (1) lack of a verified complaint is fatal; (2) IndyMac lacked standing without a pre-existing ownership interests; (3) failure to join a party under Rule 19; (4) prejudice from delay in filing the appeal.
- The court affirmed the judgment, holding (1) verified complaints are not required, (2) IndyMac had standing as the real party in interest, (3) Anthony forfeited his Rule 19 defense, and (4) no prejudice from the appellate delay was shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is a verified complaint required to initiate foreclosure? | Anthony (Anthony) asserted need for verification; IndyMac argued not required. | IndyMac contends Civ. R. 11 allows unverified pleadings with signature assurances. | Verified complaint not required. |
| Did IndyMac have standing to sue when filing without proof of assignment? | Anthony claims IndyMac lacked ownership/title at filing. | IndyMac later provided a November 14, 2008 assignment; real party in interest. | IndyMac had standing; entitled as real party in interest. |
| Was joining Wheeler under Rule 19 required, and was Anthony's Rule 19 defense preserved or forfeited? | Anthony argued Wheeler owned interest and should be joined. | Wheeler not indispensable; no timely Rule 19 defense asserted. | Anthony forfeited the Rule 19 defense; not timely asserted as required. |
| Did delay in bringing the appeal prejudice Anthony? | Delay harmed Anthony's rights. | No right to speedy appeal in civil cases; no prejudice shown. | No prejudice shown; delay not reversible. |
Key Cases Cited
- Wells Fargo Bank N.A. v. Byrd, 178 Ohio App.3d 285 (2008-Ohio-4603) (foreclosure standing: not cured by later acquisition of mortgage interest)
- Deutsche Bank Nat’l Trust Co. v. Traxler, 2010-Ohio-3940 (9th Dist. No. 09CA009739) (bank need not possess assignment at filing if timely assignment later)
- Bank of New York v. Stuart, 2007-Ohio-1483 (9th Dist. No. 06CA008953) (assignment precludes prior holders from suing; supports later standing after assignment)