2014 Ohio 4553
Ohio Ct. App.2014Background
- Appellants appeal a foreclosure judgment entered after default and summary judgment for Nationstar on a note secured by real estate in Ostrander, Ohio.
- Nationstar obtained a foreclosure loan assignment chain showing MERS as nominee and a later assignment to Nationstar prior to suit.
- Appellee filed suit alleging possession of a duly indorsed note and an assignment to establish standing.
- Service by publication and attempts at service by mail were used after regular mail failed to deliver.
- Trial court granted default judgment and summary judgment in Nationstar’s favor; foreclosure decree issued.
- Appellants challenging the sufficiency of the supporting affidavit, standing, and service of process.
- Appellants did not respond to the summary judgment motions; Liz Williams challenged service but court upheld publication and default judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Thune’s affidavit supports summary judgment. | Nationstar showed standing and proper records. | Appellants contested sufficient personal knowledge and document authentication. | Yes; summary judgment affirmed on standing and affidavit basis. |
| Whether Nationstar had standing to pursue foreclosure. | Nationstar was the current holder and servicer with a blank-endorsed note and assigned mortgage. | Dispute over whether assignment transferred note separately. | Nationstar had standing; assignment of mortgage plus blank note supported enforcement. |
| Whether service by publication was proper and valid for Liz Williams. | Nationstar exercised reasonable diligence; publication valid. | Challenge to due process due to service issues. | No abuse of discretion; service by publication upheld; default judgment valid. |
Key Cases Cited
- Hounshell v. American States Insurance Co., 67 Ohio St.2d 427 (Ohio 1981) (summary judgment standards; de novo review on appeal)
- Inland Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321 (Ohio 1984) (material facts; evidentiary standards for summary judgment)
- Drescher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (burden on moving party; Civil Rule 56)
- Citimortgage v. Cathcart, 5th Dist. Stark No. 2013CA00179, 2014-Ohio-620 (Ohio 2014) (business records; Rule 803(6) foundation; personal knowledge via custodian)
- Wells Fargo Bank, N.A. v. Dawson, 5th Dist. Stark No. 2013CA00095, 2014-Ohio-269 (Ohio 2014) (authentication of documents in affidavits; Rule 56 evidence)
- OneWest Bank, FSB v. Albert, 5th Dist. Stark No. 2013CA00180, 2014-Ohio-2158 (Ohio 2014) (affidavits based on personal knowledge; documents admissible)
- In re Thompkins, 115 Ohio St.3d 409, 875 N.E.2d 582 (Ohio 2007) (state court personal jurisdiction standards; due process)
- In re Walters, 5th Dist. Fairfield No. 2005 CA 66, 2006-Ohio-631 (Ohio 2006) (civil rule affidavits; admissibility of attorney affidavits)
- Harris v. Johnson, 5th Dist. Perry No. 10 CA 22, 2011-Ohio-3102 (Ohio 2011) (service of process; reasonable diligence standards)
- Home Loan Mortgage Corp. v. Schwartzwald, 134 Ohio St.3d 2012, 979 N.E.2d 1214 (Ohio 2012) (standing; current holder of note and mortgage)
- U.S. Bank Nat’l Assoc. v. Marcino, 181 Ohio App.3d 328, 908 N.E.2d 1032 (Ohio 2007) (standing; real party in interest in foreclosure)