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Wright-Patt Credit Union, Inc. v. Byington

Court of Appeals of Ohio, Sixth District

September 13, 2013

Wright-Patt Credit Union, Inc. Appellee
v.
Jeffrey Byington, et al. Appellants

Trial Court No. 2010-CV-0843

Jason A. Whitacre and Ashley E. Mueller, for appellee.

Jeffrey Byington, Patricia Jensen and Kenneth Jensen, pro se.

DECISION AND JUDGMENT

PIETRYKOWSKI, J.

(¶ 1} This is an appeal from a judgment of the Erie County Court of Common Pleas which granted summary judgment to plaintiff-appellee, Wright-Patt Credit Union, Inc., in its foreclosure action against defendants-appellants, Jeffrey Byington, Patricia Jensen and Kenneth Jensen. Appellants now challenge that judgment through the following assignment of error:

The trial court erred to the prejudice of the defendants-appellants in granting the plaintiffs motion for summary judgment.

(¶ 2} The facts of this case are as follows. On June 10, 2008, appellants borrowed $80, 000 from Vacationland Federal Credit Union ("VFCU") for the purchase of property located at 1114 Ging Street, in Sandusky, Ohio. Appellants executed a promissory note for that amount in favor of VFCU and secured the note with a mortgage on the premises, also in favor of VFCU. Contemporaneously with the execution of the note and mortgage, VFCU executed an assignment of deed of trust/real estate mortgage, which transferred to appellee all of its interest in the mortgage, including the "notes and obligations therein described, the money due and to become due thereon with interest, [and] all rights accrued or to accrue under such Deed of Trust/ Real Estate Mortgage." The mortgage was recorded with the Erie County Recorder on June 10, 2008. The assignment was recorded on June 12, 2008.

(¶ 3} On October 18, 2010, appellee filed a complaint in foreclosure against appellants. The complaint alleged that appellee was due under the terms of the promissory note $79, 204.01, plus interest of 8.5 percent per year from October 1, 2009, that appellants were in default in payment of the note and the mortgage securing the same, and that appellee has declared the debt immediately due and payable. In its complaint, appellee stated that in reviewing its files it could not find the note or a copy thereof but that it would continue to search for the note. Appellee did attach to the complaint copies of the mortgage and the assignment of mortgage. Appellee asserted that the conditions in the mortgage had been broken by reason of appellants' default, that the conditions precedent had been satisfied, and that appellee was entitled to a foreclosure of the mortgage. Appellee demanded judgment against appellants in the amount of $79, 204.01, plus interest, late charges, sums advanced for taxes and insurance, and all other expenditures recoverable under the note, mortgage, and Ohio law, foreclosure of the mortgage, and sale of the property.

(¶ 4} On November 23, 2010, appellee filed a copy of the promissory note in the court below. Along with the note, appellee filed a copy of an allonge, which purports to transfer the note from VFCU to appellee and appears to be dated June 10, 2008.

(¶ 5} In filing their answer, appellants generally denied all of the allegations in the complaint, except to admit that they had an interest in the property. In addition, they raised a number of affirmative defenses, including that appellee lacked standing to file the action and that appellee was not a holder in due course of the mortgage loan obligation and had no right to enforce the same.

(¶ 6} On June 17, 2011, appellee filed a motion for summary judgment. In support of its motion, appellee filed a copy of the mortgage assignment and the affidavit of Matthew Feeney, an employee of Cenlar, F.S.B., the loan servicing agent for appellee. Feeney's affidavit reads in its entirety:

1. That affiant is an employee of Cenlar, F.S.B, loan servicing agent for Plaintiff, and is duly authorized to make this Affidavit.
2. That Plaintiff is entitled to enforce the promissory note and mortgage, copies of which as executed at origination are referenced in Plaintiff's Complaint;
3. Plaintiff further states that it has exercised the option contained in said mortgage note and has accelerated and called due the ...

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