M & T Bank v. Strawn
2013 Ohio 5845
Ohio Ct. App.2013Background
- Strawn took title to 6018 Carter Street, Hubbard, Ohio in December 2007.
- He signed a promissory note payable to Countrywide Bank, FSB and granted a mortgage to MERS as nominee for Countrywide to secure the debt.
- The mortgage was assigned from MERS to Bank of America; the assignment was recorded November 9, 2011.
- The note bore three endorsements; two were void and the third endorsed to M&T Bank; no endorsements were dated.
- Bank of America notified Strawn of default on September 16, 2011, with a cure amount due by October 16, 2011, and explained acceleration if not cured.
- M&T Bank filed a foreclosure complaint February 23, 2012; it attached the note and sought summary judgment; the trial court granted summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the Fisher affidavit prove possession of the note and accuracy of copies? | M&T—possession shown by affidavit and attached note/mortgage copies. | Strawn—affidavit insufficient to establish personal knowledge or proper possession. | Affidavit sufficient; possession and copies properly established. |
| Were the default and acceleration notices proper under the note? | Notice clearly advised cure rights and dates; proper notice given. | Record lacks proper notice detailing cure rights. | Notice satisfied the note’s prerequisites; cure rights and timing communicated. |
| Did M&T Bank have standing as real party in interest to foreclose? | Holder of the note with an equitable mortgage interest can foreclose. | Standing questioned due to endorsements and chain-of-title issues in mortgage assignment. | Holder of the note with equitable mortgage interest has standing; foreclosure proper. |
Key Cases Cited
- U.S. Bank, N.A. v. Adams, 2012-Ohio-6253 (6th Dist. Erie) (possession shown by complaint-attached note and affiant's statements)
- Zuga v. Wachovia Mortgage Corp., 2013-Ohio-2838 (11th Dist. Trumbull) (affidavits with business records and true copies support possession)
- Wachovia Bank v. Jackson, 2011-Ohio-3203 (5th Dist. Stark) (personal knowledge and attached documents required for affidavits)
- Fed. Home Loan Mortg. Corp. v. Rufo, 2012-Ohio-5930 (11th Dist. Ashtabula) (equitable assignment of mortgage when note is transferred)
- CitiMortgage, Inc. v. Loncar, 2013-Ohio-2959 (7th Dist. Mahoning) (holder of note has standing to foreclose notwithstanding mortgage assignment)
- Citimortgage, Inc. v. Patterson, 2012-Ohio-5894 (8th Dist. Cuyahoga) (holder of note has standing to foreclose)
- Deutsche Bank Natl. Trust Co. v. Najar, 2013-Ohio-1657 (8th Dist. Cuyahoga) (equitable interest in mortgage arises upon note holder status)