Wells Fargo Bank, N.A. v. Scott
2015 Ohio 3269
Ohio Ct. App.2015Background
- In 2005 David Scott executed a promissory note and mortgage to Argent Mortgage Co., LLC for residential property; Wells Fargo sued in July 2014 for judgment on the note and foreclosure.
- Wells Fargo attached an assignment from Argent (signed by Citi Residential Lending, Inc. as attorney-in-fact) and moved for summary judgment, supported by an affidavit stating Scott defaulted and that a May 7, 2013 notice of default was sent.
- Scott admitted signing the note/mortgage but denied receiving any written notice of default or opportunity to cure, and challenged the validity of the assignment.
- The trial court initially denied Wells Fargo’s summary-judgment motion but, on reconsideration, granted it, finding Wells Fargo had mailed the required notice and satisfied conditions precedent.
- On appeal, the Second District held the court could reconsider its interlocutory denial, but reversed the summary judgment because Scott’s affidavit created a genuine issue of material fact whether the notice of default was properly sent as required by the note/mortgage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing/assignment validity | Wells Fargo is a person entitled to enforce the note; assignment from Argent transferred mortgage | Scott: assignment invalid because LLC cannot transfer via POA under R.C. 1705.35 | Assignment valid on these facts; borrower generally lacks standing to challenge assignment validity |
| Conditions precedent — notice of default | Wells Fargo mailed a May 7, 2013 notice; mailing satisfies contractual notice provisions | Scott swore he never received the notice; contractual terms require first-class mail or delivery | Fact issue exists: borrower’s sworn non-receipt creates genuine dispute whether notice was properly given; summary judgment reversed |
| Effect of contractual "deeming" language | Mailing is sufficient under mortgage/note; mailing creates notice | Non-receipt rebuts presumption; mailing alone without proof of method/delivery is insufficient at summary judgment | Mailing may create a rebuttable presumption, but competing affidavits preclude granting summary judgment without resolving credibility |
| Trial court reconsideration of interlocutory order | Reconsideration proper to correct earlier denial | Reconsideration improper (argued) | Reconsideration of interlocutory denial was proper |
Key Cases Cited
- Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378 (Ohio 1981) (interlocutory orders are subject to reconsideration)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (appellate de novo review of summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary-judgment standard; court may not weigh evidence or assess credibility)
- Mitseff v. Wheeler, 38 Ohio St.3d 112 (Ohio 1988) (moving party’s initial burden in summary judgment)
- First Financial Bank v. Doellman, 2007-Ohio-222 (Ohio Ct. App.) (notice mailing method must comply with contract; lender must establish compliance)
- Bank of New York Mellon v. Clancy, 2014-Ohio-1975 (Ohio Ct. App.) (borrower generally lacks standing to challenge assignments of note/mortgage)