MTGLQ Investors L.P. v. Faulkner
2018 Ohio 2885
Ohio Ct. App.2018Background
- In 2006 Jeff A. Faulkner (as trustee) executed a $68,000 promissory note and mortgage for real property in Franklin, Ohio; MERS was noted as mortgagee/note nominee.
- The note was endorsed in blank; the mortgage was assigned through a series of transfers (BAC/Countrywide → Green Tree → Ditech → MTGLQ).
- The loan terms were renegotiated in 2011 (both parties conceded a reduced principal and lower interest rate; complaint sought $44,925.90 at 5.25%).
- Ditech filed a foreclosure complaint in March 2016 alleging default beginning July 2011; the note, mortgage, and assignments were attached.
- Ditech assigned the loan to MTGLQ (Sept. 22, 2016); MTGLQ was substituted as plaintiff and moved for summary judgment supported by a servicer affidavit establishing holder status, default, acceleration, and amount due.
- Faulkner did not oppose the summary judgment motion; the trial court granted summary judgment to MTGLQ and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved entitlement to foreclosure via summary judgment | MTGLQ: produced endorsed note, recorded mortgage, assignments, servicer affidavit showing default, acceleration, and amount due | Faulkner: raised multiple substantive challenges on appeal (breach, fraud, bankruptcy discharge, TILA/RESPA, waterfall remedies) but did not raise them below or oppose MSJ | Court: MTGLQ met Civ.R. 56 burden; no genuine issue of material fact; summary judgment for MTGLQ affirmed |
| Whether defendant properly preserved affirmative defenses/claims | MTGLQ: procedural posture—defenses not raised in response to MSJ meant no evidentiary dispute | Faulkner: argued substantive defenses on appeal (new theories) | Court: new issues cannot be raised for first time on appeal; those claims forfeited |
| Whether MTGLQ established it was real party/holder and amount owed | MTGLQ: attached endorsed note, mortgage, chain of assignments, and servicer affidavit quantifying debt | Faulkner: disputed amount/default (in pleadings) but provided no opposing evidence at MSJ | Court: uncontested evidence established holder status, default, acceleration, and amount; judgment granted |
| Whether there remained any triable issue of material fact | MTGLQ: evidence only supports one conclusion adverse to Faulkner | Faulkner: offered no specific facts to rebut MSJ evidence | Court: no genuine issue; MTGLQ entitled to judgment as a matter of law |
Key Cases Cited
- (No cases with official reporter citations were provided in the opinion for inclusion.)