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Citimortgage, Inc. v. Elrod

Court of Appeals of Ohio, Eleventh District, Portage

November 6, 2017

CITIMORTGAGE, INC., Plaintiff-Appellee,
v.
DOUGLAS E. ELROD, et al., Defendant-Appellant.

         Civil Appeal from the Portage County Court of Common Pleas, Case No. 2014 CV 00154. Judgment: Affirmed.

          Harry W. Cappel and Stacy A. Cole, Graydon Head & Ritchey LLP, (For Plaintiff-Appellee).

          David N. Patterson, (For Defendant-Appellant).

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} 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.

         {¶2} 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[1], 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 plus interest."

         {¶3} 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]."

         {¶4} 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."

         {¶5} 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.

         {¶6} On March 12, 2015, CitiMortgage filed its Reply to the Counterclaims.

         {¶7} On November 12, 2015, a bench trial was held before a magistrate.

         {¶8} 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 Complaint.[2]
[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 ...

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