Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas, Case
No. 2014 CV 00154. Judgment: Affirmed.
W. Cappel and Stacy A. Cole, Graydon Head & Ritchey LLP,
N. Patterson, (For Defendant-Appellant).
V. GRENDELL, J.
Defendant-appellant, Douglas E. Elrod, appeals the decision
of the Portage County Court of Common Pleas, entering
judgment in favor of plaintiff-appellee, CitiMortgage, Inc.,
for the foreclosure and sale of certain property mortgaged to
secure the indebtedness under a promissory note. The issues
before this court are whether a lender has standing to
foreclose where it is the holder of the note but there is no
direct evidence of the mortgage's assignment and whether
evidence of notice sent to the borrower and the
borrower's payment history are sufficient to establish
the lender's right to foreclose. For the following
reasons, we affirm the decision of the court below.
On February 21, 2014, CitiMortgage, Inc. filed a Complaint
for Foreclosure and Declaratory Judgment in the Portage
County Court of Common Pleas against Douglas E. Elrod,
Kimberly A. Elrod, Vincorp, Inc., Mortgage Electronic
Registration Systems, Inc., and the Portage County Treasurer.
CitiMortgage asserted that it was "the holder of a
certain promissory note and note loan modification
agreement" and "the holder of a certain mortgage
deed, securing the payment of said promissory note and
modification agreement." It further asserted that,
"by reason of default in payment of the said note,
modification agreement and mortgage securing [the] same, * *
* there is due and unpaid thereon the sum of $111, 397.47
CitiMortgage asserted that "it has been unable to obtain
an assignment of the mortgage from Integrity Mortgage
Corporation, " although "Integrity Mortgage
Corporation intended to assign its interest in the note and
mortgage to [CitiMortgage]."
CitiMortgage sought, in relevant part, judgment in the amount
of $111, 397.47 plus interest; "a declaration by the
Court that [it] is the current holder of the note and
mortgage at issue herein"; and that "the Defendants
named herein be required to answer and set up any claim that
they may have in said premises or be forever barred."
On September 22, 2014, Elrod filed an Answer and
Counterclaims, alleging the Violation of Federal and State
Protections and Laws, Negligence/Breach of Fiduciary Duties,
Fraud/Misrepresentation, Breach of Contract, Unjust
Enrichment, and Quiet Title.
On March 12, 2015, CitiMortgage filed its Reply to the
On November 12, 2015, a bench trial was held before a
On November 25, 2015, a Magistrate Decision was issued and,
in a separate Judgment Entry, adopted by the trial court. The
magistrate made the following relevant findings:
[T]here is due the Plaintiff on the promissory note and loan
modification agreement set forth in the Complaint, the sum of
$111, 397.47, plus interest at 7.25% per annum from June 1,
2013, and * * * there is due the Plaintiff, $67.50 for
advances made for taxes, insurance and otherwise to protect
the property, for which sum, judgment is hereby rendered in
favor of the Plaintiff against the Defendant, Douglas E.
Elrod. * * *
Defendant, Douglas E. Elrod, filed a petition commencing a
case under Title 11 of the United States Code, for relief
under Chapter 7 of the Bankruptcy Code, in the United States
Court, Northern District of Ohio, Eastern Division, and being
Case No. 11-53252, and that he was subsequently discharged
and release[d] from the indebtedness due and owing to the
Plaintiff on its promissory note as set forth in the
[I]n order to secure the payment of the promissory note
aforesaid, the Defendants, Douglas E. Elrod and Kimberly A.
Elrod, husband and wife, executed and delivered to Integrity
Mortgage Corporation their certain mortgage deed, thereby
conveying to it the * * * premises * * * known as 524 North
Freedom Street, Ravenna, Ohio.
[S]aid mortgage was duly filed * * * and thereby became and
is a valid first mortgage lien upon said premises, subject
only to the lien of the Treasurer for taxes; * * * said
conditions in the mortgage deed have been broken, and the
same has become absolute and the Plaintiff is entitled to
have the equity of redemption and dower of the Defendants * *
* in and to the said premises foreclosed.
Defendants, Kimberly Elrod and Douglas Elrod, modified their
first loan agreement on July 18, 2005. Said loan modification
was done with ...