Nationstar Mtge. L.L.C. v. Payne
85 N.E.3d 249
Ohio Ct. App.2017Background
- Nationstar filed foreclosure and monetary-judgment complaint against Brian K. Payne alleging default on a promissory note and mortgage; additional defendants (unnamed/third parties) were added and did not answer.
- Payne answered the complaint; Nationstar moved for default judgment against non-answering parties and for summary judgment against Payne, supported by the affidavit of Nationstar employee Sara P. Afford and attached copies of the note, mortgage, assignment, payment history, and demand letter.
- The trial court entered default judgment against the non-answering defendants and granted summary judgment to Nationstar against Payne on February 17, 2016; Payne filed belated opposition and a cross-motion after the judgment.
- Payne raised numerous appellate challenges: procedural (deadline/notice, discovery, Civ.R. 56 timing), evidentiary objections to Afford’s affidavit and document authentication, challenges to Nationstar’s status as holder/person entitled to enforce the note, and MERS’s authority to assign the mortgage.
- The Tenth District declined to consider Payne’s affidavit filed on appeal (not in trial record), held many objections were waived for failure to timely object or seek a Civ.R. 56(F) continuance, and found Nationstar proved it was the holder/person entitled to enforce the note and had standing to seek foreclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness to respond to SJ motion | Local rules permitted 14-day response; Nationstar followed procedure | Payne argued he was entitled to 28 days under Civ.R. 56(C) | Court: Local Rule 21.01 controlled; 14 days applied, no error |
| Need for more discovery before SJ | Nationstar moved for SJ; Payne failed to request Civ.R. 56(F) continuance | Payne argued discovery incomplete and SJ premature | Court: Payne waived relief by not moving under Civ.R. 56(F); SJ properly entered |
| Affidavit/document authentication (Afford) | Afford’s affidavit and attached copies authenticated possession and documents | Payne argued affidavit unsigned/unauthenticated and Afford lacked personal knowledge | Court: Payne waived evidentiary objections by failing to timely object; court could consider affidavit and exhibits |
| Holder/person entitled to enforce note; standing | Nationstar: note indorsed (including blank indorsement) and Nationstar in possession; MERS assigned mortgage to Nationstar — so Nationstar had legal and equitable standing | Payne: Nationstar failed to show how/when it became holder; assignment/mortgage chain defective; MERS lacked authority | Court: Note was indorsed in blank and Nationstar possessed the original; MERS as nominee/mortgagee could assign mortgage; Nationstar had standing and was person entitled to enforce note |
Key Cases Cited
- Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54 (2010) (standard and de novo review for summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (burden-shifting framework for summary judgment movant and nonmovant)
- State ex rel. Gilmour Realty, Inc. v. Mayfield Heights, 122 Ohio St.3d 260 (2009) (trial court may consider unauthenticated evidence at summary judgment when no timely objection)
- Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75 (2014) (standing challenge to jurisdiction over a particular case must be timely raised or is waived)
- Deutsche Bank Natl. Trust Co. v. Holden, 147 Ohio St.3d 85 (2016) (distinguishes legal claim on the note and equitable foreclosure claim; person entitled to enforce has standing for legal judgment; mortgagee/successor has standing to foreclose)