U.S. Bank National Association v. Robert M. Perdeau, et al.
Court of Appeals No. L-13-1226
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: December 31, 2014
2014-Ohio-5818
Trial Court No. CI0201201805
Marc E. Dann and Grace Doberdruk, for appellant.
SINGER, J.
{¶ 1} Aрpellant, Robert Perdeau, appeals a judgment of foreclosure issued by the Lucas County Court of Common Pleas. Because we conclude the trial court had subject-matter jurisdiction over the foreclosure action, and did not abuse its discretion in denying appellant‘s motion to vacate without holding a hearing, we affirm.
- The trial court erred by denying appellant Robert Perdeau‘s 12(B)(1) motion to dismiss.
- The trial court abused its disсretion by denying appellant Robert Perdeau‘s 60(B) motion to vacate without holding a hearing.
{¶ 3} On April 17, 2006, appellant executed a note in favor of The CIT Group/ Consumer Finance, Inc. (“CIT“), promising to repay a $119,000 loan over a 30 year period. Securing the loan was a mortgage on real property in Sylvania, Ohio, to Mortgage Electronic Registration Systems, Inc. (“MERS“), “a separate corporation that is acting solеly as a nominee for Lender and Lender‘s Successors and Assigns.”
{¶ 4} The mortgage was recorded on May 8, 2006. On February 14, 2012, the mortgage was assigned from MERS to appellee, U.S. Bank National Association (as Successor-In-Interest to Bank of America, N.A., as Successor By Merger to LaSalle Bank National Association), as Trustee, on Behalf of the Holders of the GSAMP Trust 2006-HE4 Mortgage Pass-Through Certificates, Series 2006-HE4.
{¶ 5} On February 21, 2012, appellee instituted thе foreclosure action that underlies this appeal. Appellee alleged appellant was in default of the terms of the loan. Appellee sought judgment on the loan, foreclosure of the mortgage and sale of the property. Attached to appellee‘s complaint were copies of the note, the mortgage and the assignment of the mortgage. Appellant answered the comрlaint on March 21, 2012.
{¶ 7} On April 23, 2013, appellant‘s counsel filed a
{¶ 8} In his first assignment of error, appellant contends appellee did not produсe evidence of an interest in appellant‘s note and mortgage at the time appellee‘s complaint was filed, thus there is no actual controversy between appellee and appellant. Appellant also argues appellee lacked standing to invoke the subject-matter jurisdiction of the trial court because appellee did not establish it was entitled to enforce a notе payable to CIT.
{¶ 9}
{¶ 10} The “subject matter jurisdiction of a court is a court‘s power to hear and decide a case upon its merits.” Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph one of the syllabus. “To have standing, a party must have a personal stake in the outcome of a legal controversy with an adversary.” Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 9. “Although standing is required in order to invoke the jurisdiction of the court over a particular action in foreclosure, lack of standing does not affect the subject-matter jurisdiction of a court of common pleas.” Bank of Am., N.A. v. Kuchta, __ Ohio St.3d __, 2014-Ohio-4275, __ N.E.3d __, paragraph three of the syllabus.
{¶ 12} In his second assignment of error, appellant argues the trial court should have held a hearing on his
{¶ 13}
On motiоn and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party.
{¶ 14} To prevail on a
(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in
Civ.R. 60(B)(1) through(5) ; and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv.R. 60(B)(1) ,(2) or(3) , not
{¶ 15} The movant must set forth “operative facts” in support of these requirements. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988). While there is no requirement that the movant submit evidentiary material in support of the motion, the movant must рresent more than bare allegations of entitlement to relief. Id. at 20-21. If the movant‘s motion for relief from judgment contains allegations of operative facts which would warrant relief under
{¶ 16} Here, а review of appellant‘s motion to vacate shows appellant sought relief from judgment under
{¶ 17} Regarding appellant‘s claim for relief pursuant to
There is certainly no merit to the contention that dismissal of petitioner‘s claim because of his counsel‘s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have “notice of all facts, notice of which can be charged upon the attorney.” Id. at 152.
{¶ 18} The GTE court thus adopted the rule that “the neglect of a party‘s attorney will be imputed to the party for the purposes of
{¶ 20} With respect to appellant‘s claim for relief pursuant to
{¶ 21} Further in support of his claim under
Note‘s Lack of Endorsement
{¶ 22} The record shows the note attached to appellee‘s complaint was payable to CIT and was never endorsed to appellee or endorsed in blank. When a note is unendorsed, the note itself is insufficient to show the transferee is a “holder” of the note. Deutsche Bank Natl. Trust Co. v. Gardner, 8th Dist. Cuyahoga No. 92916, 2010-Ohio-663, ¶ 22. Nonetheless, other evidence in the record can be considered to determine whether the transfеree has the right to enforce the note. Id. In Deutsche Bank Natl. Trust Co. v. Greene, 6th Dist. Erie No. E-10-006, 2011-Ohio-1976, ¶ 15, this court held:
the assignment of the mortgage, in conjunction with interlocking references in the mortgage and the note, transferred the note as well. See Restatement
{¶ 23} Here, appellee alleges in its complaint that it “is a person entitled to enforce the Note, pursuant to
{¶ 24} We find, based upon the language in the note, the mortgage and the assignment, the parties had a clear intent to keep the note and mortgage together. Thus, just like in the Greene case, the assignment of the mortgage, in conjunction with the interlocking references in the mortgage and the note, transferred the note as well. Therefore, despite the lack of endorsement on the note, there is evidence that appellee is the owner and holder of the note with the right to enforce payment thereon. Thus, thе officer‘s averment to that effect is supported by the record.
{¶ 25} Appellant challenges appellee as the holder of the note because the note lacked the endorsements required by the PSA. Appellant also claims appellee is prevented from holding the mortgage because the assignment was executed after the closing date of the trust, which did not comply with the PSA.
{¶ 26} This court held in Bank of New York Mellon v. Huth, 6th Dist. Lucas Nos. L-12-1241, L-12-1283, 2014-Ohio-4860, ¶ 26, that a mоrtgage borrower who is not a party to an assignment of the mortgage lacks standing to challenge the assignment of his mortgage based upon a claimed breach of the pooling and servicing agreement. This court noted:
Ohio courts have routinely found that when a debtor or mortgagor is neither a party to, nor a third-party beneficiary of, the assignment of a mortgage, the debtor or mortgagor lacks standing to challenge the validity of the mortgage assignment between an assignor and an assignee. LSF6 Mercury REO Invests. Trust Series 2008-1 c/o Vericrest Fin., Inc. v. Locke, 10th Dist. Franklin No. 11AP-757, 2012-Ohio-4499, ¶ 28; Bank of New York Mellon v. Froimson, 8th Dist. Cuyahoga No. 99443, 2013-Ohio-5574, ¶ 17-18. Buckner v. Bank of New York, 12th Dist. Clermont No. CA2013-07-053, 2014-Ohio-568, ¶ 15. Id. at ¶ 25.
{¶ 27} Based on the foregoing, appellant does not have standing to challenge compliance with the PSA.
{¶ 28} Appellant alleges the affidavit of the Select officer offered in support of appellee‘s motion for summary judgment “does not appear to have been mаde upon personal knowledge” because the affidavit does not mention how the note was transferred to the trust. Appellant further alleges the affidavit falsely states appellee mailed a notice (of intent to foreclose, of default and of acceleration) at least 30 days prior to foreclosure when appellee was not assigned the mortgage until only seven days prior to foreclosure, thus appellee failed to establish it complied with a condition precedent, so the judgment should be vacated. Appellant also contends the affidavit did not include a payment history as an exhibit demonstrating a default, as required under
To properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (1) the movant is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the movant is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due. Wright-Patt Credit Union, Inc. v. Byington, 6th Dist. Erie No. E-12-002, 2013-Ohio-3963, ¶ 10. The defendant‘s response “by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so
respond, summary judgment, if аppropriate, shall be entered against the party.”
Civ.R. 56(E) .
{¶ 29} Here, appellee presented all of the required evidence in support of its motion for summary judgment. Appellee offered evidence that it is entitled to enforce the note, and that the mortgage was assigned to appellee. While the officer‘s affidavit did not mention how the note was transferred to the trust, there is no requirement for appellee to present this information. In addition, appellee submitted evidence, via the officer‘s affidavit, that:
Robert M. Perdeau defaulted under the terms and conditions of the above stated note/bond and mortgage by failing, refusing and neglecting to make the payment due October 1, 2011, and all payments due thereafter. * * * Plaintiff sent the required Notice of Intent to Foreclosure to the borrower(s) at least 30 days prior to filing the foreclosure complaint. * * * Borrower has defaulted under the Note and Mortgage and has filed to cure the default. All requirements necessary to accelerate the loan have been met, and the loan has been accelerated * * *. [T]he amount due on the Note includes (a) unpaid principal in the amount of $113,589.30; (b) interest on the unpaid principal at the rate of 8.9% * * *.
{¶ 30} As stated previously, appellant did not respоnd to or oppose appellee‘s motion for summary judgment. Moreover, appellant‘s affidavit in support of his motion to vacate did not contradict any of appellee‘s evidence nor in any way challenge the
{¶ 31} Concerning appellant‘s argument that appellee could not have mailed notice of intent to foreclose to appellant at least 30 days before the foreclosure complaint was filed because the mortgage was only assigned 7 days before the complaint was filed, it appears as if appellant is contending that since appellee did not have an interest in the mortgage at least 30 days before the foreclosure complaint was filed, appellee could not mail a notice of intent to foreclose to appellant. While the law in Ohio is clear that a party must have an interest in a note or mortgage at the time suit is filed in order to have standing to invoke the jurisdiction of the court, appellant presents no law in support of his argument and we have found none which provides that a future assignee of a mortgage cannot give notice of intent to foreclose prior to the time suit is filed. See Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d
{¶ 32} With respect to appellant‘s assertion that the officer was required to attach to the affidavit an exhibit establishing appellant‘s payment history, appellant relies on Third Fed. S. & L. Assn. of Cleveland v. Farno, 12th Dist. Warren No. CA2012-04-028, 2012-Ohio-5245, ¶ 10. In that case, the court found the bank‘s summary judgment motion was not supported, as provided in
{¶ 33} In view of the foregoing, there is no evidence of false statements in the affidavit offered in support of appellee‘s motion for summary judgment. Moreover, there is proof in the record that appellee complied with all conditions precedent. As a result, appellant has not established that he is entitled to relief under
{¶ 35} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.