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Deutsche Bank National Trust Co. v. Baxter

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017

DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC., PLAINTIFF-APPELLEE
v.
MICHELLE M. BAXTER, A.K.A. MICHELLE BAXTER, ET AL., DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-834668.

          ATTORNEY FOR APPELLANT Edward F. Herman

          ATTORNEYS FOR APPELLEE For Deutsche Bank National Trust Company Justin M. Rich Manley, Deas & Kochalski L.L.C., Scott A. King Terry W. Posey, Jr. Thompson Hine L.L.P. Also listed: New Century Mortgage Corporation Attn: Legal Department

          BEFORE: McCormack, J., Kilbane, P.J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, JUDGE

         {¶1} Defendants-appellants, Michelle M. Baxter and Norman T. Baxter, III, appeal from a judgment of the Cuyahoga County Court of Common Pleas granting a motion for summary judgment filed by Deutsche Bank National Trust Company ("Deutsche Bank") in a foreclosure action. After a review of the record and applicable law, we affirm the trial court's judgment.

         Substantive Facts and Procedural Background

         {¶2} In 2005, Michelle M. Baxter and Norman T. Baxter executed a promissory note in the amount of $143, 450 in favor of New Century Mortgage Corporation ("New Century"). The note was secured by a mortgage executed by the Baxters against a house they owned located on Valley View Avenue, Cleveland. The Baxters defaulted under the note sometime in 2009.

         {¶3} In December 2009, Deutsche Bank filed a foreclosure complaint against the Baxters in CV-09-711803. The complaint contained an unindorsed copy of the note and a February 2009 assignment of the mortgage from New Century to Deutsche Bank. In October 2010, the trial court entered a judgment in favor of Deutsche Bank.

         {¶4} More than three years later, on May 19, 2014, the Baxters filed a "Motion to Vacate Void Judgment and Set Aside Sheriffs Sale, " alleging Deutsche Bank lacked standing to file the foreclosure case because the assignment of the mortgage was executed under a power of attorney granted to Wells Fargo Bank but the power of attorney was revoked due to New Century's filing for bankruptcy in 2007, prior to the assignment of the mortgage to Deutsche Bank in 2009.

         {¶5} On June 30, 2014, the trial court issued a judgment in favor of the Baxters, finding that Deutsche Bank failed to establish standing to bring the foreclosure action. The trial court explained that the note attached to the complaint lacked any indorsement and that the assignment of the mortgage was invalid because New Century's power of attorney was revoked under bankruptcy law. The trial court concluded Deutsche Bank lacked standing. It vacated the judgment of foreclosure and dismissed the foreclosure case without prejudice.

         {¶6} On October 22, 2014, Deutsche Bank refiled the foreclosure action against the Baxters (the instant case), alleging that it was a "person entitled to enforce the note" Attached to its complaint was a copy of the note indorsed in blank by New Century and the February 2009 assignment of mortgage from New Century to Deutsche Bank, executed by Wells Fargo Bank as Attorney-in-Fact for New Century.

         {¶7} On May 8, 2015, Deutsche Bank amended its complaint, adding the original mortgagee New Century as a defendant. It also added a count seeking a declaratory judgment that Deutsche Bank was the person entitled to enforce the note and mortgage and that New Century had transferred all rights and interests in the note and mortgage to Deutsche Bank.

         {¶8} Subsequently, Deutsche Bank filed a motion for default against New Century and for summary judgment against the Baxters. Attached to the complaint was an affidavit by Darenique L. Jamison, Vice President Loan Documentation of Wells Fargo Bank, servicing agent for Deutsche Bank. She stated that she had personal knowledge of this loan matter from her examination of the business records and that at the time of the filing of the present complaint, Deutsche Bank has ...


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