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Bank of New York Mellon Trust Co. v. Hentley

Court of Appeals of Ohio, Eighth District

July 18, 2013

BANK OF NEW YORK MELLON TRUST COMPANY, N.A. PLAINTIFF-APPELLEE
v.
MARY HENTLEY, ET AL. DEFENDANTS-APPELLANTS

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-707739

ATTORNEY FOR APPELLANT James R. Douglass James R. Douglass, Co., L.P.A.

ATTORNEYS FOR APPELLEE Karen M. Cadieux David A. Wallace Carpenter Lipps & Leland L.L.P.

BEFORE: Rocco, J., Boyle, P.J., and Blackmon, J.

JOURNAL ENTRY AND OPINION

KENNETH A. ROCCO, J.

{¶ 1} In this action to foreclose on a mortgage secured by a promissory note, defendant-appellant Orville Hentley appeals from the trial court orders that: (1) denied his motion to vacate a summary judgment that was entered against him in favor of plaintiff-appellee the Bank of New York Mellon Trust Company, National Association ("the bank"); and, (2) declined to reconsider that decision.

{¶ 2} Hentley argues in his sole assignment of error that the bank was not entitled to summary judgment on its complaint because it failed to demonstrate that it had standing to enforce the note and to foreclose on the mortgage, therefore, the trial court lacked jurisdiction over the subject matter, and thus the court acted improperly by denying his motion to vacate the bank's judgment pursuant to Civ.R. 60(B).

{¶3} On review of the record, this court disagrees with Hentley's argument. Consequently, his assignment of error is overruled, and the trial court's decisions are affirmed.

{¶ 4} The bank filed this action on October 23, 2009. The complaint contained the following pertinent allegations:

2. On December 23, 1999, Mary Hentley and Orville Hentley executed the promissory note [to American National Home Mortgage] attached to this Complaint as Exhibit A (the "Note").
3. On December 23, 1999, to secure payment of amounts due under the Note, Mary Hentley and Orville Hentley executed and delivered [to American National Home Mortgage] the mortgage attached to this Complaint as Exhibit B (the "Mortgage"). The parties to the Mortgage intended that it attach to the entire fee simple interest in the property.
4. The Note is in default * * * .
5. The Mortgage was filed December 29, 1999, recorded at Official Instrument Number 199112290559, Recorder's Office, Cuyahoga County, Ohio.
6. On October 10, 2000, the Mortgage, together with the Note, was assigned [by American National Home Mortgage] to EquiCredit Corporation of America by an assignment recorded at Official Instrument Number 200010100913, Recorder's Office, Cuyahoga County, Ohio. A copy of this assignment is attached to this Complaint as Exhibit C.
7. On July 25, 2003, the Mortgage, together with the Note, was assigned [by EquiCredit Corporation of America] to JP Morgan Chase Bank, as Trustee by an assignment recorded at Official Instrument Number 200307250222, Recorder's Office, Cuyahoga County, Ohio. A copy of this assignment is attached to this complaint as Exhibit D.
8. The Mortgage, together with the Note, was assigned [by JPMorgan Chase Bank, as Trustee] to Plaintiff by an assignment executed on October 5, 2009. A copy of this assignment is attached to this Complaint as Exhibit E.
9. The Mortgage conveys to Plaintiff an interest in [13627 Christine Avenue, Garfield Heights, Ohio] (the "Property").
12. The personal obligations of Mary Hentley on the Note have been discharged [in bankruptcy]. * * * However, Orville Hentley remains personally obligated for the amount due on the Note. * * *
14. The Mortgage is a valid and subsisting first lien on the ...

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