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Flagstar Bank, FSB v. Harvey

Court of Appeals of Ohio, Ninth District

June 26, 2013

FLAGSTAR BANK, FSB Appellee
v.
JIBAU HARVEY, et al. Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2011 01 0243

KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.

AUSTIN B. BARNES, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

CARLA MOORE, Presiding Judge.

{¶1} Defendant-Appellant, Jibau Harvey, appeals from the July 20, 2012 and August 8, 2012 judgment entries of the Summit County Court of Common Pleas. This Court reverses.

I.

{¶2} In January of 2011, Flagstar Bank, FSB filed a complaint in foreclosure against Mr. Harvey alleging that he defaulted upon his mortgage note and owed $108, 639.63, plus interest at 5.50% per year from January 1, 2010. In addition, Flagstar Bank, FSB attached to its complaint copies of the (1) note, (2) mortgage, (3) December 8, 2010 assignment of the mortgage from Mortgage Electronic Registration Systems, Inc., acting solely as nominee for Flagstar Bank, FSB, a Federally Chartered Savings Bank, to Flagstar Bank, FSB, and (4) preliminary judicial report.

{¶3} Mr. Harvey filed a motion to dismiss the bank's complaint alleging that Flagstar Bank, FSB lacked standing to file this lawsuit, and that Flagstar Bank, FSB failed to join a necessary party. In support of his motion, Mr. Harvey attached copies of three assignments of the mortgage evidencing transfers from: (1) Mortgage Electronic Registration Systems, Inc., acting solely as nominee for Flagstar Bank, FSB, A Federally Chartered Savings Bank, to Flagstar Bank, FSB, dated December 8, 2010, (2) Flagstar Bank, FSB to the Secretary of Housing and Urban Development, dated April 8, 2011, and (3) the Secretary of Housing and Urban Development to DKR Mortgage Asset Trust I, dated May 9, 2011.

{¶4} Flagstar Bank, FSB then filed a motion to substitute the party plaintiff from Flagstar Bank, FSB to DKR Mortgage Asset Trust I. In its motion, Flagstar Bank, FSB asserted that, based upon its attached documents, DKR Asset Trust I is the proper party plaintiff in this matter. The attached documents include a copy of the note showing the original "lender" as Flagstar Bank, FSB, A Federally Chartered Savings Bank, endorsed to HUD then to DKR Asset Trust I, and subsequent assignments of the mortgage from Flagstar Bank, FSB, to the Secretary of Housing and Urban Development, and from the Secretary of Housing and Urban Development to DKR Mortgage Asset Trust I.

{¶5} The trial court granted Flagstar Bank, FSB's motion to substitute DKR Mortgage Asset Trust I as the party plaintiff and denied Mr. Harvey's motion to dismiss. Mr. Harvey then filed an answer generally denying the allegations in Flagstar Bank, FSB's complaint.

{¶6} DKR Mortgage Asset Trust I filed a motion for summary judgment arguing that there are no genuine issues of material fact for trial because Mr. Harvey's general denial and undemonstrated defenses alone cannot overcome summary judgment. At the same time, it filed the affidavit of Annette Torres, who is purportedly employed by the "plaintiff in this matter as servicer of Mr. Harvey's account.

{¶7} In response, Mr. Harvey jointly filed (1) a reply to DKR Mortgage Asset Trust I's motion for summary judgment and (2) a renewed motion to dismiss. Mr. Harvey asserted that: (1) all of the pleadings filed on DKR Mortgage Asset Trust I's behalf continue to be filed under Flagstar Bank, FSB's name, (2) it is unclear who the real party in interest is because all negotiations and mediations were handled by Kondaur Capital Corporation, (3) DKR Mortgage Asset Trust I did not meet its evidentiary burden entitling it to judgment as a matter of law, and (4) it would be inequitable, under the circumstances, to foreclose upon the property.

{¶8} DKR Mortgage Asset Trust I filed a "sur-reply" stating, among other things, that, in support of its motion for substitution of the party plaintiff, it attached a copy of the note endorsed to DKR Mortgage Asset Trust I, as well as the assignment of the mortgage from the Secretary of Housing and Urban Development to DKR Mortgage Asset Trust I. DKR Mortgage Asset Trust I also attached a copy of a limited power of attorney, dated April 28, 2011, naming Kondaur Capital Corporation as its attorney-in-fact.

{¶9} The trial court denied Mr. Harvey's renewed motion to dismiss, and granted DKR Mortgage Asset Trust I's motion for summary judgment. The trial court also issued a foreclosure ...


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