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U.S. Bank National Association v. Perry

Court of Appeals of Ohio, Eighth District

September 5, 2013

U.S. BANK NATIONAL ASSOCIATION PLAINTIFF-APPELLANT
v.
WORLEY V. PERRY, ET AL. DEFENDANTS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-664469

ATTORNEYS FOR APPELLANT Terry W. Posey, Jr. Scott A. King Thompson Hine L.L.P.

ATTORNEY FOR APPELLEES Lawrence J. Rich Zashin & Rich Co., L.P.A.

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

JOURNAL ENTRY AND OPINION

PATRICIA ANN BLACKMON, JUDGE

(¶ 1} Appellant U.S. Bank National Association ("U.S. Bank") appeals the trial court's dismissal of its foreclosure action against Worley V. Perry and Dorothy Perry ("the Perrys") and assigns the following error for our review:

The trial court erred in dismissing the complaint.

(¶2} Having reviewed the record and pertinent law, we affirm the trial court's decision. The apposite facts follow.

Facts

(¶3} This is the second appeal regarding this foreclosure action. In the prior appeal, we reversed the trial court's granting of summary judgment in favor of U.S. Bank on its complaint seeking a foreclosure judgment against the Perrys. We concluded it was not clear whether U.S. Bank had standing at the time it filed the complaint because the prior lender's affidavit attached to the summary judgment did not state that U.S. Bank was the holder of the note or mortgage at the time the complaint was filed and was dated after the complaint was filed. U.S. Bank Natl. Assn. v. Perry, 8th Dist. Cuyahoga No. 94757, 2010-Ohio-6171 ("Perry 7"). Also, the assignment of the mortgage was done on the same day the complaint was filed without any indication whether the assignment was completed prior to the filing of the complaint.

(¶4} U.S. Bank appealed our decision to the Ohio Supreme Court because it believed that any issue regarding when the mortgage was assigned was immaterial because standing could be cured. U.S. Bank also maintained that because it was the holder of the note that was indorsed in blank, it had established interest in the property sufficient to create standing. The Ohio Supreme Court accepted the case and held it for the decision in Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214. On December 5, 2012, the Supreme Court affirmed our decision in Perry I on the basis of its holding in Schwartzwald and remanded the matter to the trial court. U.S. Bank Natl. Assn. v. Perry, 134 Ohio St.3d 328, 2012-Ohio-5497, 982 N.E.2d 665.

(¶ 5} On February 5, 2013, the trial court dismissed the case, stating as follows:

Pursuant to journal entry and opinion 94757 of the Eighth Appellate District Court of Appeals and the affirmation thereafter by the Ohio Supreme Court, plaintiff did not submit evidence of its ownership of the note and mortgage at the time the complaint was actually filed. As such, the plaintiff lacked the ability to invoke the jurisdiction of the court. This case is dismissed. S ...

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