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Fannie Mae v. Trahey

Court of Appeals of Ohio, Ninth District

July 15, 2013

FANNIE MAE ("FEDERAL NATIONAL MORTGAGE ASSOCIATION") Appellee
v.
KELLY ANN TRAHEY, et al. Appellants

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 11CV172390

JOHN J. GILL and GEOFFREY R. SMITH, Attorneys at Law, for Appellant.

EDWARD KOCHALSKI, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

BETH WHITMORE, Judge.

{¶1} Appellant, Robert Trahey, appeals from the judgment of the Lorain County Court of Common Pleas. This Court reverses.

I

{¶2} In May 2008, Robert and Kelly Ann Trahey executed a promissory note in favor of Sirva Mortgage, Inc. ("Sirva") to purchase a property in North Ridgeville, Ohio. At the same time, the Traheys signed a mortgage granting a security interest in the property to Mortgage Electronic Registration Systems, Inc. ("MERS") acting solely as nominee for Sirva. In May 2011, MERS assigned the mortgage to Federal National Mortgage Association ("Fannie Mae").

{¶3} In June 2011, Fannie Mae filed a complaint for foreclosure against the Traheys. Fannie Mae listed the Traheys, their unknown spouses, and Waterbury Homeowners Association as defendants. Attached to its complaint, Fannie Mae included copies of the promissory note and mortgage executed in favor of Sirva and a copy of the assignment of mortgage from MERS to Fannie Mae. Sirva had indorsed the promissory note in blank. There is no indication of when this indorsement was made.

{¶4} In September 2011, Fannie Mae filed an amended complaint "to attach the fully negotiated note with all [indorsements." The promissory note attached showed Sirva had indorsed the note to CitiMortgage, Inc. and that CitiMortgage, Inc. had indorsed the note in blank. Unlike the note attached to the original complaint, this copy of the note did not include an indorsement from Sirva in blank. There are no dates associated with either of the indorsements.

{¶5} Fannie Mae filed a motion for summary judgment, which Robert Trahey opposed, arguing that there is a genuine issue of material fact as to whether Fannie Mae had standing to maintain the action. A magistrate issued a decision recommending the court grant default judgment against Kelly Ann Trahey, the unknown spouses of both Kelly Ann and Robert Trahey, and the Waterbury Homeowners Association for failure to file an answer or other responsive pleading. The magistrate further recommended that the court grant the motion for summary judgment. That same day, the trial court adopted the magistrate's decision. Robert Trahey now appeals and raises two assignments of error for our review.

II

Assignment of Error Number One

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT WITHOUT SUMMARY JUDGMENT EVIDENCE DEMONSTRATING THAT FANNIE MAE WAS THE REAL PARTY IN INTEREST ENTITLED TO ENFORCE THE NOTE AND THE MORTGAGE.

{¶6} In his first assignment of error, Trahey argues that the court erred in granting summary judgment in favor of Fannie Mae because it did not establish that it had ...


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