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Bank of America, NA v. Barber

Court of Appeals of Ohio, Eleventh District

September 23, 2013

BANK OF AMERICA, NA, SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, L.P., f.k.a. COUNTRYWIDE HOME LOANS SERVICING, L.P., Plaintiff-Appellee,
v.
JEFFREY B. BARBER, et al., Defendants-Appellants.

Civil Appeal from the Lake County Court of Common Pleas, Case No. 12CF000383.

Eric T. Deighton, Carlisle, McNellie, Rini, Kramer & Ulrich LPA, (For Plaintiff-Appellee).

David N. Patterson, (For Defendants-Appellants).

OPINION

CYNTHIA WESTCOTT RICE, J.

(¶1} Appellants, Jeffrey B. Barber, et al., appeal the summary judgment of foreclosure entered in favor of Appellee, Bank of America, NA, successor by merger to BAC Home Loans Servicing, L.P., f.k.a. Countrywide Home Loans Servicing, L.P. ("BAC"), by the Lake County Court of Common Pleas. At issue is whether any genuine issue of material fact existed regarding whether BAC had standing when it filed this mortgage foreclosure action. For the reasons that follow, the trial court's judgment is affirmed.

(¶2} On or about June 30, 2010, Appellant, Jeffrey B. Barber, purchased a home in Eastlake, Ohio. He applied for and received a residential home loan from BAC in the amount of $88, 500. In return for the loan, he executed a promissory note in that amount in favor of BAC. In order to secure the loan, Appellant Barber executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), acting solely as nominee for the lender BAC.

(¶3} Subsequently, Appellant Barber defaulted on the note by failing to make payments due for September 1, 2011, or any subsequent installments, and the amount owed was accelerated. On December 13, 2011, MERS assigned said mortgage to BAC.

(¶4} On February 14, 2012, BAC filed this action in foreclosure against Appellant Barber and his spouse, Jane Doe. BAC alleged that it was the holder of the note; that, due to Appellant Barber's default, it declared said debt due; and that the amount owed on said loan is in the principal amount of $87, 291. BAC attached copies of the note, mortgage, and assignment of the mortgage to the complaint.

(¶5} On April 10, 2010, Appellant Barber and his wife, Appellant Kathleen E. Joliffe, filed their joint answer, denying the material allegations of the complaint and asserting various affirmative defenses, including BAC's alleged lack of standing.

(¶6} On April 24, 2012, BAC filed a motion for summary judgment against appellants. In support of said motion, BAC filed the affidavit of Betty J. Marion, an assistant vice president of BAC, stating that BAC holds the subject note; that Appellant Barber defaulted on the note by failing to make payments due for September 1, 2011, or any subsequent installments; that the debt has been accelerated; and that the principal balance due under said note is $87, 292.

(¶7} Appellants filed a brief in opposition to BAC's motion for summary judgment. Appellants did not file any affidavits or other evidentiary materials in support of their brief. In opposition to summary judgment, appellants argued that BAC failed to show it had standing; that BAC failed to give notice of default prior to acceleration; and that BAC failed to present an affidavit or other evidence of Appellant Barber's default.

(¶8} On January 8, 2013, the trial court entered summary judgment and a decree in foreclosure against appellants. The court found the note and assignment of the mortgage attached to the complaint established that BAC had standing. The court found that appellants referenced no evidence that BAC failed to give them notice of default before acceleration. Finally, the court found that BAC submitted an affidavit evidencing the amount owed under the note.

(¶9} The trial court issued an order of sale. On January 25, 2013, appellants filed a motion to vacate the order of sale and to withdraw the property ...


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