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Bank of America v. George M. Kuchta

December 3, 2012

BANK OF AMERICA APPELLEE
v.
GEORGE M. KUCHTA, ET AL. APPELLANTS



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 10CIV1003

The opinion of the court was delivered by: Whitmore, Presiding Judge.

Cite as Bank of Am. v. Kuchta,

ss:

COUNTY OF MEDINA

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellants, George and Bridget Kuchta, appeal from the judgment of the Medina County Court of Common Pleas, denying their motion for relief from judgment. This Court reverses.

I

{¶2} In 2002, Appellants financed a purchase of property in Hinckley, Ohio.

Appellants executed a promissory note for $650,000 in favor of Wells Fargo and secured the note by a mortgage granting a security interest in the property to Wells Fargo.

{¶3} On June 1, 2010, Bank of America filed a complaint in foreclosure, in which it claimed to be the holder of the promissory note executed by Appellants in 2002. The note did not contain any endorsements. Bank of America attached a copy of the mortgage and promissory note. On June 10, 2010, Wells Fargo executed an Assignment of Mortgage. The Assignment states that Wells Fargo "does hereby sell, assign, transfer and set over unto Bank of America * * *, a certain mortgage from [Appellants] * * *, together with the Promissory Note secured thereby and referred to therein; and all sums of money due and to become due thereon, and secured by the following real estate * * *." This assignment was recorded on June 23, 2010.*fn1

{¶4} On July 2, 2010, Appellants filed an answer pro se, in which they argued that the complaint failed to show that Bank of America owned or was assigned their mortgage.

{¶5} Subsequently, Bank of America filed a motion for summary judgment and an affidavit of Herman John Kennerty in support. Kennerty, the Vice President of Loan Documentation for Wells Fargo, the servicing agent for Bank of America, stated that Bank of America is the holder of Appellants' promissory note and mortgage and attached a copy of the Assignment of Mortgage. Appellants did not oppose the motion for summary judgment.

{¶6} Throughout the following year, "the [c]court conducted numerous settlement conferences in an attempt to avoid foreclosure and secure a loan modification for [Appellants]." In June 2011, Bank of America determined that Appellants did not qualify for a loan modification. Shortly thereafter, the court granted Bank of America's motion for summary judgment and scheduled the property for a Sheriff's sale on September 29, 2011. No appeal was filed.

{ΒΆ7} On September 23, 2011, Appellants filed a motion to vacate judgment pursuant to Civ.R. 60(B). The court denied their motion on September 29, 2011. That same day, Appellants filed for bankruptcy, and the case was stayed until the bankruptcy action was terminated in March 2012. Appellants now appeal from the court's denial ...


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