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Fifth Third Mortgage Co. v. Bell

Court of Appeals of Ohio, Twelfth District

August 26, 2013

FIFTH THIRD MORTGAGE COMPANY, Plaintiff-Appellee,
v.
MARCIA C. BELL, et al., Defendants-Appellants.

CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CVE2012066

Lerner, Sampson & Rothfuss, Elizabeth S. Fuller, Kirk Sampson, for plaintiff-appellee.

Doucet & Associates, Inc., Troy Doucet, Audra Tidball, for defendant-appellant, Greg A. Bell.

Choctaw Lake Property Owners Association, c/o Michael Heyamer, defendant, pro se.

Susan L. Taylor and Larry R. Taylor, defendant, pro se.

Landes, Pickett and Troutman, Mark Troutman, Two Miranova Place, for defendant, Fifth Third Bank (County Risk Sharing Authority).

Mark Landes, for defendant, County Risk Sharing Authority.

Bethany Hamilton, Assistant United States Attorney, for United States of America.

OPINION

RINGLAND, P.J.

(¶ 1} Defendant-appellant, Greg A. Bell a.k.a. Greg Bell (Bell), appeals a decision of the Madison County Common Pleas Court granting summary judgment in favor of plaintiff-appellee, Fifth Third Mortgage Company (FTMC), in a foreclosure suit.[1]

(¶ 2} On July 29, 1997, Bell and his wife, Marcia, purchased a home in London, Ohio.[2] To finance the purchase, the Bells executed a promissory note in favor of State Savings Bank in exchange for a loan amount of $212, 000. The note was secured by an open-end mortgage executed on the same day. On August 15, 2011, the mortgage was assigned to FTMC.

(¶ 3} In late 2011, the Bells defaulted on the payment obligations as set forth in the note and mortgage. On January 4, 2012, the Bells received a notice of default and a notice of intent to accelerate the note from FTMC. On February 29, 2012, FTMC filed a complaint in foreclosure alleging the Bells were in default under the terms of the note and requested enforcement of the mortgage. In the complaint, FTMC asserted it was in possession of the note and entitled to enforce it. FTMC also alleged that the note was secured by a mortgage which it was entitled to have foreclosed. Attached to the complaint was the originally executed note and mortgage from the Bells to State Savings Bank. The note contained no endorsements or an allonge. Also attached to the complaint was an assignment of the mortgage from Fifth Third Bank f.k.a. Fifth Third Bank, Central Ohio f.k.a. The Fifth Third Bank of Columbus successor by merger to State Savings Bank to FTMC dated August 15, 2011. The assignment was recorded at the county recorder's office on September 6, 2011.

(¶ 4} On August 22, 2012, FTMC moved for summary judgment. In support of the motion, FTMC filed the affidavit of Jeff Brennan, an affidavit analyst for Fifth Third Bank, the loan servicer for FTMC. Brennan averred that he had "personal knowledge of the facts stated in [the] affidavit" and that he had access to the records relating to the mortgage loan subject to this action. Attached to the affidavit was a copy of the promissory note. This note, unlike the note attached to the complaint, contained two endorsements; a special endorsement to Fifth Third Bank and a blank endorsement.[3]

(¶ 5} Bell filed a memorandum in opposition to the motion for summary judgment or, in the alternative, a motion under Civ.R. 56(F) to conduct additional discovery as to FTMC's standing. Bell asserted that the note attached to the complaint did not confer standing to FTMC.

(¶ 6} The trial court granted summary judgment to FTMC on October 22, 2012. The trial court also denied Bell's motion under Civ.R. 56(F), finding Bell failed to demonstrate that additional time for discovery was necessary.

(¶ 7} On November 7, 2012, Bell filed a motion to reconsider and a motion to dismiss the complaint based on the Ohio Supreme Court's decision in Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, which was decided just days after the trial court granted summary judgment. In this motion, Bell asserted FTMC lacked standing and consequently requested that the complaint be dismissed. The trial court denied Bell's motion, finding that FTMC had standing as the assignment of the mortgage occurred well before the filing of the complaint. A final appealable order granting summary judgment, a decree in foreclosure and reformation of the deed was filed on January 16, 2013. Bell appeals the trial court's decision, raising three assignments of error for review. For ease of discussion, we combine Bell's first and second assignments of error.

(¶ 8} Assignment of Error No. 1:

(¶ 9} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN [FTMC]'S FAVOR AND IN FAILING TO DISMISS THE COMPLAINT BECAUSE [FTMC] DID NOT MEET ITS BURDEN OF ESTABLISHING IT HAD STANDING UNDER THE NOTE.

(¶ 10} Assignment of Error No. 2:

(¶ 11} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN [FTMC]'S FAVOR AND IN FAILING TO DISMISS THE COMPLAINT BECAUSE THE EVIDENCE SUBMITTED BY [FTMC] DEMONSTRATES IT DID NOT COMPLY WITH CONDITIONS PRECEDENT SET FORTH IN THE MORTGAGE AS A MATTER OF LAW.

(¶ 12} In his first and second assignments of error, Bell challenges the trial court's decision granting summary judgment in favor of FTMC. In his first assignment of error, Bell asserts that summary judgment was improper and the complaint should have been dismissed because FTMC failed to demonstrate it had standing under the note on the date the complaint was filed. In his second assignment of error, Bell argues that summary judgment was inappropriate because FTMC failed to establish ...


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