BANK OF AMERICA, N.A. v. VIVIAN L. THOMPSON, et al.
Appellate Case No. 25952
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 30, 2014
2014-Ohio-2300
Trial Court Case No. 2012-CV-07941; (Civil Appeal from Common Pleas Court)
Rendered on the 30th day of May, 2014.
GREGORY H. MELICK, Atty. Reg. #0065694, Luper, Neidenthal & Logan, a Legal Professional Association, 50 West Broad Street, Suite 1200, Columbus, Ohio 43215-3374 Attorney for Plaintiff-Appellee, Bank of America, N.A.
VIVIAN L. THOMPSON, 180 North Ardmore, Dayton, Ohio 45417-2204 Defendant-Appellant, pro se
MATHIAS H. HECK, JR., by DOUGLAS TROUT, Atty. Reg. #0072027, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
HALL, J.,
{¶ 1} Vivian Thompson appeals pro se the trial court‘s judgment decree in
I. FACTS
{¶ 2} In 2005, Thompson obtained a home loan from Countrywide Home Loans, Inc. She executed a promissory note to Countrywide for $91,248 and gave a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as Countrywide‘s nominee. On May 1, 2012, MERS assigned the mortgage to Bank of America.
{¶ 3} Thompson dеfaulted on the note when she failed to make the June 2012 payment, and the following November, the Bank filed a foreclosure action against her. The Bank attached to its complaint, among other documents, a copy of the note, the mortgage, and the assignment of mortgage. Thompson filed a pro se answer captioned, “Answer in Affidavit of Negative Averment.” In February 2013, the Bank moved for summary judgment. The trial court entered an order stating that it would decide the summary-judgment motion on March 11. The order states that no hearing will be held unless a party asks for one and that all summary-judgment memoranda and affidavits must be filed by March 10 unless a party asks for an extension. Neither party asked for a hearing or an extension.
{¶ 4} Five days before the filing deadline, Thompson refiled her “Answer in Affidavit of Nеgative Averment.” The same day, Thompson also filed a petition for bankruptcy in bankruptcy court. The bankruptcy case was dismissed on August 1, 2013. Almost a month-and-a-half later, the Bank filed a motion to reactivate the foreclosure proceeding, which the trial court granted. On September 16, 2013, the trial court sustained the Bank‘s motion for summary judgment and entered judgment on the note and orderеd foreclosure if Thompson fails
{¶ 5} Thompson appealed.
II. ANALYSIS
{¶ 6} Thompson presents four assignments of error for our review. The first contends that the trial court lacked jurisdiction because the Bank lacked standing when it initiated the foreclosure action. The second contends that summary judgment is improper because genuine issues of material fact remain. The third contends that Thompson did not receive due process because she did not receive reasonable notice of judicial process and was not given a reasonable opportunity to be heard. And the fourth assignment of error contends that the Bank violated
A. The Bank‘s Standing
{¶ 7} Thompson contends that the trial court lacked jurisdiction because at the time the Bank initiated the foreclosure action it lacked standing. “It is fundamental that a party commencing litigation must have standing to sue in order to present a justiciable controversy and invoke the jurisdiction of the common pleas court.” Federal Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 41. To have standing to bring a foreclosure action based on default, the party must have an interest in the note or mortgage at the time the party filed suit. Id. at ¶ 28. Thоmpson contends that when the Bank filed suit it did not own the note.
{¶ 8} The note is a negotiable instrument, making it subject to Chapter 1303 of Ohio‘s Uniform Commercial Code. See Nationstar Mtge., L.L.C. v. West, 2d Dist. Montgomery No. 25813, 2014-Ohio-735 (finding this of a similar note). Under Chapter 1303, a person may be entitled to enforce a negotiable instrument “even though the person is not the owner of the instrument.”
{¶ 9} The note here contains a blank indorsement.1 By possessing this note, which the Bank evidently did, the Bank was the note‘s holder and was entitled to enforce it. Compare PHH Mtge. Corp. v. Unknown Heirs of Cox, 2d Dist. Montgomery No. 25617, 2013-Ohio-4614, ¶ 7, fn. 1 (concluding that the mortgage company was entitled to enforce a note that it possessed because the note contained a similаr blank indorsement); Pasqualone at ¶ 33 (concluding that the bank in the case was entitled to enforce a note that it possessed containing a blank indorsement).
{¶ 10} Because the Bank was entitled to enforce the note, it had an interest in the note. Therefore when the Bank filed suit against Thompson, it had standing, and the trial court had jurisdiction.
{¶ 11} We have considered the other issues connected with this assignment of еrror raised in Thompson‘s briefs and find that they are without merit.
{¶ 12} The first assignment of error is overruled.
B. Summary Judgment
{¶ 13} Thompson next contends that the trial court should not have entered summary
{¶ 14} The Bank presented all of the required evidence. Attached to the complaint are the blankly indorsed note, the mortgage, and the assignment of mortgage transferring the mortgage from the original mortgagee (MERS) to the Bank. The complaint avers that all conditions precedent have been met. Attached to the summary-judgment motion are an affidavit from one of the Bank‘s assistant vice presidents averring that Thompson is in default and an account information statement showing the amount of principal and interest due. Thompson‘s
{¶ 15} Thompson contends, for the first time on appeal, that there is no evidence that she is in default. But the affidavit supporting the motion for summary judgment plainly states otherwise: “Borrower(s) defaulted on the note by failing to make payments due for 06/01/2012, or any subsequent installments.” (Affidavit Supporting Plaintiff‘s Motion for Summary Judgment, ¶ 6). That Thompson is in default is corroborated by the attached account information statement.
{¶ 16} Thompson also contends that there is no evidence that the cоnditions precedent have been performed. “Where a cause of action is contingent upon the satisfaction of some condition precedent,
{¶ 18} Thompson also challenges MERS‘s authority to assign the mortgage to the Bank. Generally, “a party who receives an assignment of mortgage from MERS as nominee has standing to [seek] foreclosure on the mortgage when the borrower defaults on the loan.” (Citations omitted.) GMAC Mtge., L.L.C. v. Waller, 8th Dist. Cuyahoga No. 99457, 2013-Ohio-4376, ¶ 10. Thompson‘s arguments here do not convince us otherwise.4
{¶ 19} Lastly, Thompson premises several contentions on two pieces of correspondence, which are attached to her appellate brief, that she received from the Bank after she filed her affidavit. Although this evidence was not before the trial court, and is not on its own summary-judgment evidence, we will briefly address these contentions.
{¶ 21} The second piece of correspondence is a July 19, 2013 letter from the Bank that was sent in response to Thompson‘s request to view the original note. The letter states that, under
{¶ 22} Thompson fails to show a genuine issue for trial, so summary judgment is
{¶ 23} The second assignment of error is overruled.
C. Due Process Concerns
{¶ 24} Thompson contends, in the third assignment of error, that she did not receive due process because she did not receive reasonable notice of judicial process or a reasonable opportunity to be heard. Thompson says that she did not receive the Bank‘s motion to reactivate the case until the day after the court entered judgment. She contends that before the court entered judgment she was not “afforded the opportunity to object and present the new evidence receive[d] from Plaintiff through correspondence.” (Brief of Defendant-Appellant Vivian L. Thompson, 25-26).
{¶ 25} After the Bank filed the summary-judgment motion, the trial court entered an order saying that it would decide the motion by 1:00 p.m. on March 11, 2013. The order states thаt “[n]o oral hearing will be conducted unless requested by any party and approved by the Court in which event a definite date and time will be set.” And, the order continues, “[a]ll memoranda and/or affidavits either in support of or in opposition to the motion must be filed with a copy delivered to the Court not later than 24 hours prior to the aforesaid date and time set for submission unless the Court, upon oral or written request, grants an extension.” (Feb. 15, 2013 Entry Setting Submission Date of March 11, 2013).
{¶ 26} Five days before the filing deadline, Thompson again filed her “Answer in Affidavit of Negative Averment.” That same day, March 5, Thompson filed a petition for bankruptcy in bankruptcy court. Also that day, the Bank filed a “Notice of Bankruptcy Filing and
{¶ 27} Although no new date certain was set, we see no due-process violation. Thompson appears to have responded to the summary-judgment motion with her “Answer in Affidavit,” as nothing else was actively pending at the time she filed it. Also, the trial court arguably did not need to give Thompson notice. The Ohio Supreme Court has held that “a trial court need not notify the рarties of the date of consideration of a motion for summary judgment or the deadlines for submitting briefs and
{¶ 28} We have considered the other issues connected with this assignment of error raised in Thompson‘s briefs аnd find that they are without merit.
{¶ 29} The third assignment of error is overruled.
D. The Identity of the Person Entitled to Enforce the Note
{¶ 30} Thompson alleges, in the fourth assignment of error, that in its complaint the
{¶ 31} The fourth assignment of error is overruled.
{¶ 32} The trial court‘s judgment is affirmed.
FROELICH, P.J., concurring:
{¶ 33} An intermediate appellate court is an error-correcting court and, therefore, with rare exceptions, must rule based on the record in the trial court. “Significantly, appellate courts consider assignments of error, while [the Supreme Court] considers propositions of law. The two are materially and substantively different.” State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 63 (O‘Donnell, J., dissenting). And with this record, I concur with the affirmance.
{¶ 34} This is not to hold that, for example, MERS‘s involvement, let alonе its being named as both the nominee and mortgagee, could not create legal issues in another case. See,
DONOVAN, J., concurs in judgment only.
Copies mailed to:
Gregory H. Melick
Vivian L. Thompson
Kenneth Thompson
Mathias H. Heck
Douglas Trout
Hon. Mary K. Huffman