Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bank of America, N.A. v. Edwards

Court of Appeals of Ohio, Ninth District, Lorain

June 19, 2017

BANK OF AMERICA, N.A. Appellee/Cross-Appellant
v.
JOHN D. EDWARDS, et al. Appellants/Cross-Appellees

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14CV183464

          JOSHUA E. LAMB, Attorney at Law, for Appellants/Cross-Appellees.

          STEFANIE L. DEKA and JASON A. WHITACRE, Attorneys at Law, for Appellee/Cross-Appellant.

          DECISION AND JOURNAL ENTRY

          TIMOTHY P. CANNON JUDGE.

         {¶1} Appellants/Cross-Appellees, John and Stacey Edwards (collectively, "the Edwards"), appeal from the judgment of the Lorain County Court of Common Pleas. Additionally, Appellee/Cross-Appellant, Bank of America, N.A. ("Bank of America"), appeals from the court's judgment. This Court affirms in part and reverses in part.

         I.

         {¶2} On November 29, 2007, John Edwards signed a $151, 800 note in favor of Ross Mortgage Corporation ("Ross Mortgage") for certain real property located on Cooper Foster Road in Vermillion ("the Property"). The FHA-insured loan was secured by a mortgage on the Property in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Ross Mortgage. The mortgage identified John Edwards as the mortgagor, but Stacey Edwards also signed the mortgage for the purpose of releasing her dower interest. Both the note and the mortgage for the Property were later assigned to other banks.

         {¶3} On May 12, 2014, Bank of America filed a complaint in foreclosure against the Edwards, alleging that it was the current holder of the note and mortgage for the Property. Bank of America alleged that the Edwards had defaulted on the note on September 1, 2009, and that it was entitled to accelerate the balance of the loan and seek a decree of foreclosure. The Edwards filed an answer with leave of court and raised numerous defenses. Relevant to this appeal, they alleged that Bank of America lacked standing and had brought suit without first satisfying certain conditions precedent to foreclosure.

         {¶4} Bank of America ultimately moved for summary judgment, and the Edwards filed a brief in opposition. The court then received a reply brief from Bank of America, a sur-reply from the Edwards, and a response from Bank of America. Following its review of the filings, the trial court issued its judgment. The court found that Bank of America had standing to bring suit, but was not entitled to summary judgment. The court found that Bank of America had failed to prove that, before filing suit, it had complied with certain HUD regulations that were conditions precedent to foreclosure. The court wrote: "[Bank of America's] Motion for Summary Judgement is denied, [and its] complaint is hereby dismissed without prejudice. This is a dismissal on the merits. Case Closed."

         {¶5} After the court entered judgment, the Edwards filed a motion to clarify, noting that the court simultaneously had dismissed the matter without prejudice and had ordered a dismissal on the merits. The Edwards asked the court to specify that its dismissal was with prejudice rather than without prejudice. Before the trial court addressed the Edwards' motion, both the Edwards and Bank of America appealed from the court's original judgment entry.

         {¶6} This Court consolidated the Edwards' and Bank of America's appeals for purposes of briefing, argument, and decision. Their appeals are now before us and, collectively, raise four assignments of error for our review. For ease of analysis, we rearrange several of the assignments of error.

         II.

         {¶7} Before turning to the merits of this appeal, this Court pauses to address two points that concern the scope of our review in this matter. First, a dismissal without prejudice is ordinarily not a final, appealable order because it "constitutes a dismissal other than on the merits * * *." Smirz v. Smirz, 9th Dist. Lorain No. 13CA010408, 2014-Ohio-3869, ¶ 10. Here, however, the trial court specifically disposed of this matter "on the merits" with the intention of prohibiting Bank of America from proceeding against the Edwards on the basis of their current loan default. As further explained below, the court mistakenly referred to the dismissal as one "without prejudice" before later attempting to amend its entry to reflect that the dismissal was "with prejudice." Under these particular facts and circumstances, the general bar against appeals from dismissals without prejudice does not apply. See id. The court's judgment entry constitutes a final, appealable order from which the parties' may seek relief.

         {¶8} Second, this matter involves several procedural abnormalities that we note, but reserve judgment upon due to the arguments raised on appeal. We note that only Bank of America moved for summary judgment, but rather than entering judgment in its favor or finding genuine issues of material fact remained for trial, the court entered a judgment of dismissal in favor of a nonmoving party (i.e., the Edwards). We further note that the basis for the trial court's dismissal on the merits was that the bank had not satisfied a condition precedent to foreclosure. But see Fifth Third Mtge. Co. v. Berman, 10th Dist. Franklin No. 15AP-394, 2015-Ohio-4466. This Court will not address issues that neither party has raised, so we caution that our decision, to the extent it does not address certain issues, should not be construed as a ratification of the lower court proceedings. Consistent with this Court's general practice, the scope of our review is limited to the issues the parties have chosen to raise in their respective assignments of error. See Citizens Bank Natl. Assn. v. Ranch Rd. Superior Properties, L.L.C., 9th Dist. Summit No. 28023, 2016-Ohio-7590, ¶ 11, quoting State v. Thomas, 9th Dist. Summit No. 27266, 2015-Ohio-2935, ¶ 40 ("'An appellant's assignment of error provides a roadmap for our review and, as such, directs our analysis of the trial court's judgment.'"). With the foregoing in mind, we turn to the parties' arguments.

         THE EDWARDS' ASSIGNMENT OF ERROR II

         THE TRIAL COURT ERRED WHEN IT DETERMINED THAT BANK OF AMERICA HAD STANDING TO ENFORCE THE NOTE AND MORTGAGE.

         {¶9} In their second assignment of error, the Edwards argue that the trial court erred when it concluded that Bank of America had standing to enforce the note and mortgage on the Property. We do not agree.

         {¶10} "It is fundamental that a party commencing litigation must have standing to sue in order to present a justiciable controversy and invoke the jurisdiction of the common pleas court." Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 41. "In general, '[t]o properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (1) the movant is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the movant is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due.'" (Alteration sic.) Deutsche Bank Natl. Trust Co. v. James, 9th Dist. Summit No. 28156, 2016-Ohio-7950, ¶ 8, quoting HSBC Mtge. Servs., Inc. v. Watson, 3d Dist. Paulding No. 11-14-03, 2015-Ohio-221, ¶ 24. "'The lack of standing at the commencement of a foreclosure action requires dismissal of the complaint * * *.'" Deutsche Bank Natl. Trust Co. v. Dvorak, 9th Dist. Summit No. 27120, 2014-Ohio-4652, ¶ 7, quoting Schwartzwald at ¶ 40.

         {¶11} In support of its motion for summary judgment, Bank of America produced the affidavit of Carol Ann Yagusic, one of its assistant vice presidents. Yagusic averred that she had personal knowledge of Bank of America's business records, including those records associated with the loan on the Property. She averred that Bank of America, directly or through an agent, held the note for the loan at the time of filing its foreclosure complaint and that "the original note was sent to counsel for [Bank of America's] office prior to the filing of the Complaint at counsel's request."[1] Yagusic attached a copy of the note to her affidavit and incorporated it by reference as a true and accurate copy.

         {¶12} Yagusic also attached to her affidavit a copy of the mortgage that the Edwards signed and an assignment of that mortgage from MERS, as nominee for Ross Mortgage, to BAC Home Loans Servicing, LP, FKA Countrywide Home Loans Servicing, LP. Yagusic attested to the fact that, on July 1, 2011, BAC Home Loans Servicing, LP merged with Bank of America. To evidence her attestation of the merger, she incorporated by reference (1) a copy of the Institutional History for BAC Home Loans Servicing, LP from the National Information Center; and (2) a copy of a Certificate of Merger from the Office of the Secretary of State in Texas. Both documents indicate that, effective July 1, 2011, BAC Home Loans Servicing, LP merged with Bank of America.

         {¶13} The copy of the note for the Property that Yagusic attached to her complaint contains four endorsements. Specifically, it contains: (1) a special endorsement from Ross Mortgage to Countrywide Bank, FSB; (2) a special endorsement from Countrywide Bank, FSB to Countrywide Home Loans Servicing LP; (3) a special endorsement from Countrywide Home Loans Servicing, LP to Countrywide Bank, FSB; and (4) a blank endorsement by "Bank of America, N.A. successor by merger to Countrywide Bank, FSB." Although all four endorsements are undated, the blank endorsement by Bank of America is stamped below the other three endorsements that appear on the note. In her affidavit, Yagusic attested to the fact that, on April 27, 2009, Countrywide Bank, FSB was acquired by Bank of America. To evidence her attestation of the merger, she incorporated by reference a copy of the Institutional History of "Centennial Branch" from the National Information Center. The Institutional History indicates that, on April 27, 2009, Countrywide Bank, FSB was acquired by Bank of America. Moreover, the endorsements on the note (1) from Countrywide Home Loans Servicing, LP to Countrywide Bank FSB, and (2) from Bank of America in blank are both signed by the same individual: "Michele Sjolander."

         {¶14} The Edwards opposed Bank of America's motion for summary judgment on the basis that the bank had not shown that it was the current holder of either the note on the Property or their mortgage. The Edwards argued that Bank of America had failed to set forth "legitimate summary judgment evidence" that it had acquired Countrywide Bank FSB, such that it had the authority to endorse the note in blank following the last special endorsement to Countrywide Bank FSB. They asserted that none of the documents attached to Yagusic's affidavit were business records of Bank of America, such that she could attest to their veracity on the basis of personal knowledge. Likewise, they challenged Bank of America's evidence with respect to the chain of assignment on their mortgage. They argued that Bank of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.