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Citimortgage, Inc. v. Loncar

Court of Appeals of Ohio, Seventh District

June 25, 2013

CITIMORTGAGE, INC., PLAINTIFF-APPELLEE,
v.
RANDY LONCAR, et al., DEFENDANTS-APPELLANTS.

Civil Appeal from Common Pleas Court, Case No. 11CV148.

For Plaintiff-Appellee: Attorney Harry Cappel Attorney John Greiner Attorney Jennifer Heller Attorney Thomas Henderson.

For Defendant-Appellant: Attorney Thomas Michaels.

JUDGES: Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Frank D. Celebrezze, Jr., Judge of the Eighth District Court of Appeals, Sitting by Assignment.

OPINION

VUKOVICH, J.

{¶1} Defendants-appellants Randy Loncar, individually, and Patricia Loncar, individually and as Trustee of Lauren Ann Loncar and Macy Lynn Loncar Family Trust (collectively referred to as the Loncars) appeal the decision of the Mahoning County Common Pleas Court granting summary judgment to plaintiff-appellee CitiMortgage, Inc. on its foreclosure action against the Loncars. Two issues are raised in this appeal. The first is, did CitiMortgage, Inc. have standing to bring this suit against the Loncars? The second issue concerns service of the notice of default and whether there is a genuine issue of material fact that the Loncars and the Loncar Family Trust received notice of the default.

{¶2} Regarding the first issue, at the time of filing the complaint CitiMortgage was not assigned the mortgage. However, the note that was attached to the complaint indicates that Home Savings & Loan Co., the original lender, transferred the note to CitiMortgage. Thus, CitiMortgage was the holder of the note at the time it filed the complaint against the Loncars and as such, it had standing to bring the suit. Concerning the second issue, an affidavit attached to CitiMortgage's Motion for Summary Judgment avers that the Loncars were served with the notice of default. This was sufficient to meet the notice requirement set forth in the note and mortgage. Consequently, the trial court's grant of summary judgment for CitiMortgage is hereby affirmed.

Statement of the Case

{¶3} On December 22, 2008, a note for $217, 500 and mortgage for the property located at 200 Russo Dr., Canfield, Ohio, was executed by Randy Loncar, individually, and Patricia Loncar, individually and as Trustee of Lauren Ann Loncar and Macy Lynn Loncar Family Trust. Home Savings & Loan Co. of Youngstown, Ohio was named as the lender on the note.

{¶4} On January 14, 2011, CitiMortgage filed a complaint in foreclosure against the Loncars. CitiMortgage claimed to be the holder of the note. The complaint contained an assertion that the Loncars and the Loncar Family Trust were in default on the note. Attached to the complaint is the note, which contains a stamped endorsement from Home Savings & Loan to CitiMortgage.

{¶5} On February 9, 2011, Home Savings & Loan assigned the mortgage to CitiMortgage, Inc. A notice of the assignment was filed with the common pleas court on April 12, 2011 indicating that the assignment was recorded in Mahoning County on March 4, 2011.

{¶6} On April 1, 2011, the Loncars filed an answer to the complaint. Multiple defenses were raised in the answer, however, the two of import are the allegation that CitiMortgage lacked standing and that the Loncars and specifically the Loncar Family Trust did not receive notice of default as is required by the note and mortgage.

{¶7} CitiMortgage filed a motion for summary judgment on May 19, 2011. Attached to the motion is an affidavit from the document control officer. The Loncars filed a motion in opposition to summary judgment again asserting that CitiMortgage lacked standing and that the Loncars did not receive notice of the default. An affidavit from Patricia Loncar is attached to the motion.

{¶8} On September 2, 2011, the trial court granted summary judgment in CitiMortgage's favor and issued a decree of foreclosure. It is from that ...


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