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U.S. Bank National Association v. George N. Kafantaris

October 28, 2011

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF AEGIS ASSET BACKED SECURITIES TRUST, MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2004-2, PLAINTIFF-APPELLEE,
v.
GEORGE N. KAFANTARIS, ET AL., DEFENDANTS-APPELLANTS.



Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2009 CV 02261.

The opinion of the court was delivered by: Mary Jane Trapp, J.

Cite as U.S. Bank Natl. Assn. v. Kafantaris,

OPINION

Judgment: Affirmed.

{¶1} Appellants, George and Maria Kafantaris, appeal from the judgment of the Trumbull County Court of Common Pleas granting appellee, U.S. Bank National Association, as Trustee for the Registered Holders of Aegis Backed Securities Trust,

Mortgage Pass-Through Certificates, Series 2004-2 ("U.S. Bank"), summary judgment and ordering the foreclosure and sheriff sale of the Kafantarises' home. At the core of their appeal is the assertion that U.S. Bank was not the real party in interest, and therefore did not have standing to bring the foreclosure action. We find that U.S. Bank was, in fact, the real party in interest at the time the complaint was filed and thus had standing. The trial court did not err in granting summary judgment in U.S. Bank's favor and for the following reasons we affirm the trial court's judgment.

{¶2} Substantive Facts and Procedural History

{¶3} On February 24, 2004, George and Maria Kafantaris executed a mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS"), acting solely as nominee for Aegis Lending Corporation. The mortgage was recorded on March 1, 2004. This mortgage secured a promissory note executed the same day by Mr. Kafantaris to Aegis Lending Corporation. At some time between February 24, 2004 and April 30, 2004, Aegis Lending Corporation transferred the note, via special endorsement, to Aegis Mortgage Corporation. Subsequently, but during the same time period, Aegis Mortgage Corporation transferred the note, via blank endorsement, to U.S. Bank. The endorsements were not dated, but the time frame for the endorsements was provided via the deposition testimony of the loan processor.

{¶4} The Kafantarises defaulted on the loan in March of 2007.

{¶5} On August 2, 2007, MERS, acting solely as nominee for Aegis Lending Corporation, assigned the mortgage to U.S. Bank National Association, Successor in Interest to Wachovia Bank, N.A., as Trustee for the Registered Holders of Aegis Asset Backed Securities Trust, Mortgage Pass-Through Certifications, Series 2004-2 ("U.S. Bank as Successor to Wachovia").

{¶6} On January 30, 2009, U.S. Bank as Successor to Wachovia assigned the mortgage to U.S. Bank. Although the assignment document recites in the first paragraph that it was entered into on "May 1, 2004," the remainder of the document, including the notary attestation, uses the January 30, 2009 date. On August 24, 2009, U.S. Bank brought a complaint for foreclosure in the Trumbull County Court of Common Pleas.

{¶7} The following summary chart may be helpful to the reader:

KAFANTARIS MORTAGE LOAN TIMELINE

Feb. 24, 2004 Between Feb. 24, 2004 and April 30, 2004 Between Feb. 24, 2004 and April 30, 2004 ...


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