Nationstar Mtge., L.L.C. v. Perry
2013 Ohio 5024
Ohio Ct. App.2013Background
- Angela Perry executed a $240,000 promissory note secured by a mortgage in August 2007 and later defaulted.
- Nationstar filed a foreclosure complaint on July 15, 2011 seeking $238,498.87; the complaint attached an unendorsed copy of the note and the mortgage and assignments showing MERS→Flagstar (2008) and Flagstar→Nationstar (2009).
- Nationstar later moved for summary judgment and attached an affidavit from an employee plus a copy of the note endorsed in blank by Flagstar.
- Perry moved for leave to respond and to dismiss; both motions were denied and the magistrate granted summary judgment to Nationstar; trial court adopted the decision.
- On appeal Perry argued (1) Nationstar did not own or hold the note when it filed suit and (2) Nationstar lacked standing to bring the foreclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue in foreclosure | Nationstar alleged it had the mortgage assignment and was holder of the note | Perry argued the note attached to the complaint was unendorsed, so Nationstar lacked standing | Court held Nationstar met standing: it had assignment and demonstrated holder status by note endorsed in blank and related evidence |
| Sufficiency of summary judgment evidence (affidavit/authentication) | Affidavit and attached note copies were sufficient to show amount due, possession and holder status | Perry argued affidavit lacked personal-knowledge foundation and did not authenticate "true copies" (hearsay) | Court found affidavit satisfied Civ.R. 56(E): affiant had personal knowledge via review of business records and properly averred copies were true copies; evidence admissible |
Key Cases Cited
- Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 979 N.E.2d 1214 (Ohio 2012) (standing to sue in foreclosure is determined at commencement of suit; party must hold note or have mortgage assignment)
- State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 423 N.E.2d 105 (Ohio 1981) (affidavit averments that attached documents are true copies suffice for verification under Civ.R. 56)