CitiMortgage, Inc. v. EvansCitiMortgage, Inc. v. Evans
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 9, 2015
Thomas C. Loepp, Esq.
1865 Arndale Rd., Suite B
Stow, OH 44224
Susan M. Gray, pro se
Ohio Savings Bank Building
22255 Center Ridge Road, Ste. 210
Rocky River, OH 44116
ATTORNEYS FOR APPELLEES
For Citimortgage, Inc.
Barbara A. Borgman
602 Main Street
Suite 500
Cincinnati, OH 45202
Harry W. Cappel
John C. Greiner
Graydon Head & Ritchey L.L.P.
1900 Fifth Third Center
511 Walnut Street
Cincinnati, OH 45202
Joshua J. Epling
Laurito & Laurito L.L.C.
7550 Paragon Road
Dayton, OH 45459
For Citifinancial, Inc.
Citifinancial, Inc.
c/o Corporation System, Statutory Agent
1300 East Ninth Street
Cleveland, OH 44114
Timothy J. McGinty
Cuyahoga County Prosecuting Attorney
By: Kelli Kay Perk
1200 Ontario Street
Justice Center, 8th Floor
Cleveland, OH 44113
For Mark Evans, et al.
Lee R. Kravitz
4508 State Road
Cleveland, OH 44109
For Fairview Hospital
Fairview Hospital
c/o CT Corporation System
1300 East Ninth Street
Cleveland, OH 44114
For Lakeside Villages of Olmsted Township
Shannon M. McCormick
Kaman & Cusimano, L.L.C.
50 Public Square
2000 Terminal Tower
Cleveland, OH 44113
For Ohio Department of Taxation
Christine Kurilic
150 East Gay Street, 21st Floor
Columbus, OH 43215
Kent W. Penhallurick
U.S. Attorney‘s Office
Carl B. Stokes U.S. Courthouse
801 W. Superior Ave., Suite 400
Cleveland, OH 44113
{¶1} Defendant-appellant, Susan Gray, appeals from a judgment of the Cuyahoga County Court of Common Pleas court that granted summary judgment in favor of CitiMortgage, Inc. in a foreclosure action. For the following reasons, we affirm.
I
{¶2} In 2002, Irene and Mark A. Evans executed a promissory note payable to ABN AMRO Group, Inc. (hereafter “ABN“) for the amount of $300,700. The loan was secured by a mortgage on a residential property in Olmsted Falls.
{¶3} Three years later, in 2005, the Evanses stopped making payments on the loan.1 In 2006, ABN filed a foreclosure action against the Evanses. While the case was pending, in 2007, ABN merged with CitiMortgage.
{¶4} In defending against the foreclosure, the Evanses submitted evidence that Freddie Mac purchased the loan from ABN in 2002 and therefore ABN was not the “owner” of the loan when the complaint was filed. ABN ultimately dismissed the case without prejudice in 2010.2
{¶6} In 2013, CitiMortgage filed the instant foreclosure case. CitiMortgage alleged that (1) it was the holder of the subject note and mortgage, (2) the Evanses were in default, (3) all conditions precedent have been met, and (4) $266,383.52 plus interest at 6.375% per annum from November 2005 was due on the note.
{¶7} While the note attached to the previous case contained no indorsement, the note attached to the instant complaint contained a blank indorsement executed by ABN.
{¶8} Subsequently, CitiMortgage moved for summary judgment and filed an affidavit from a vice president of CitiMortgage in support of its motion.
{¶9} Gray, as the holder of a junior mortgage, opposed CitiMortgage‘s summary judgment.3 She also moved for a partial summary judgment seeking a dismissal of the complaint, claiming CitiMortgage lacked standing to foreclose. Gray alleged that CitiMortgage was neither the holder nor the owner of the note because the loan was sold to Freddie Mae. Gray also claimed the note attached to the instant complaint was inaccurate, pointing out the note attached to the prior complaint did not have an indorsement while the note attached to the instant complaint contained a blank indorsement from ABN. Moreover, Gray questioned the validity of the blank indorsement by ABN because CitiMortgage produced the note with the ABN indorsement
{¶10} Addressing each of the issues raised, the magistrate issued a decision finding that CitiMortgage had the right to enforce the note and mortgage. The court adopted the magistrate‘s decision, granting CitiMortgage‘s motion for summary judgment and denied Gray‘s motion for partial summary judgment. Gray appealed the trial court‘s judgment to this court.
II
{¶11} On appeal, Gray raises two assignments of error for our review. She argues the trial court erred in granting summary judgment in favor of CitiMortgage and also erred in not granting partial summary judgment in her favor. We address these claims together.
{¶12} We review the trial court‘s judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
{¶13} Summary judgment is appropriate when: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party.
{¶14} Once a moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the moving party‘s pleadings, rather, it has a
{¶15} A motion for summary judgment in a foreclosure action must be supported by evidentiary quality materials establishing: (1) that the plaintiff is the holder of the note and mortgage or is a party entitled to enforce the instrument; (2) if the plaintiff bank is not the original mortgagee, the chain of assignments and transfers; (3) that the mortgagor is in default; (4) that all conditions precedent have been met; and (5) the amount of principal and interest due. Bank of Am., N.A. v. Sweeney, 8th Dist. Cuyahoga No. 100154, 2014-Ohio-1241, ¶ 8.
{¶16} In a foreclosure action, the current holder of the note and mortgage is the real party in interest. Wells Fargo Bank v. Stovall, 8th Dist. Cuyahoga No. 91802, 2010-Ohio-236. Under
{¶17} The issue presented in this appeal is whether the evidence presented by CitiMortgage entitled it to summary judgment regarding its right to enforce the note. CitiMortgage argues that it is the holder of the note by virtue of its possession of the note indorsed in blank.
{¶18} To prove it is holder of the note, CitiMortgage submitted an affidavit by Adam Millay, a Document Control Vice President of CitiMortgage. He averred that he made the statements based upon his personal knowledge obtained from a personal review of the business records for the subject loan and from his personal knowledge about CitiMortgage‘s operation regarding the maintenance and retrieval of records in its record keeping systems. Millay averred that loan account records are made at or near the time of occurrence of each event affecting the account by persons with knowledge of the event and those records are maintained in the course of ordinary business activity.
{¶19} Millay also averred that the business records relating to the Evanses loan that he reviewed included the note, mortgage, and CitiMortgage‘s electronic servicing system. He specifically averred that CitiMortgage‘s records contain a note executed by the Evanses in the amount of $300,700 secured by the Olmsted Falls real property, that CitiMortgage “holds the Note” and is the servicer for the loan. Attached to Millay‘s affidavit was a copy of the note indorsed in blank by ABN. Millay stated that the attached copy of the note was a true and accurate copy of the note as it appeared in CitiMortgage‘s business records.
{¶21} Our review of Millay‘s affidavit shows the affidavit was sufficiently based on personal knowledge for
{¶22} Gray argues Millay‘s affidavit is insufficient to prove it is a holder of the note. Her argument is based on Millay‘s statement that, based on his review of the records regarding the subject loan, CitiMortgage “holds” the note. Gray claims that Millay was required to expressly state that CitiMortgage possessed the original note. The trial court rejected this contention, and so do we.
{¶23} First, a person who “holds” a note includes one in possession of the note that is payable to bearer.
{¶24} Second, the plaintiff in a foreclosure case is not required to present testimony specifically stating it holds the original note in order to prove its right to enforce the note. Bank of Am., N.A. v. Merlo, 11th Dist. Trumbull No. 2012-T-0103, 2013-Ohio-5266, ¶ 18. The Eleventh District explained that when the affiant did not qualify the statement by saying the bank only had possession of a copy of the note, the affiant was referring to the actual note itself, i.e., the original, rather than a copy of it. Id.
{¶25} While Millay averred that CitiMortgage was the holder of the note, Gray submitted no evidence to the contrary, other than alleging that Freddie Mac, not CitiMortgage, was the owner of the note, pointing to evidence showing that the loan was sold to Freddie Mac in 2002. As we note above, a person is entitled to enforce a note even though the party seeking to enforce a note is not the owner of the note. Coffey, supra. See also Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 58. CitiMortgage, as the current holder of the note, had the right to enforce the note.
{¶26} Finally, the fact there were two different copies of the note — the note submitted in the prior foreclosure case did not have an indorsement while the note submitted in the instant case was indorsed in blank by ABN — does not refute the holder status of CitiMortgage. As the trial court observed, if the blank indorsement was proper, CitiMortgage, as one in possession of a note indorsed in blank, was the holder and
{¶27} CitiMortgage has presented evidence showing the lack of a genuine issue of material fact regarding its entitlement to enforce the note. Furthermore, CitiMortgage, as the successor to the original mortgagee ABN, was entitled to enforce the mortgage. Harris, supra. The undisputed evidence shows the amount of $266,383.52 plus interest was due on the note. Gray has not created a genuine issue of material fact precluding a finding of CitiMortgage‘s entitlement to foreclose.
{¶28} The judgment of the trial court is affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR