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SRB Servicing, LLC v. McIntyre

United States District Court, N.D. Ohio, Eastern Division

June 11, 2019

SRB SERVICING, LLC, etc., Plaintiff,
v.
CYNTHIA ALLEN McINTYRE, et al., Defendants.

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO, J.

         This matter comes before the Court upon the Motion (ECF DKT #73) of Defendants Cynthia Allen McIntyre and Stedson R. McIntyre for Summary Judgment and the Motion (ECF DKT #74) of Plaintiff, SRB Servicing, LLC for Summary Judgment against Defendants on the Amended Complaint. For the following reasons, Defendants' Motion is granted, Plaintiff's Motion is denied and the Amended Complaint is dismissed.

         I. FACTUAL BACKGROUND

         On June 12, 2002, Defendants Cynthia and Stedson McIntyre executed a Promissory Note in the principal amount of $125, 000, plus interest on any unpaid outstanding principal balance and payable to The Second National Bank of Warren.

         On June 12, 2002, Defendant Cynthia McIntyre executed a Mortgage on the real property known as 650 Clinton Lane, Highland Heights, Ohio 44143 securing the $125, 000 Promissory Note. Defendant Stedson McIntyre signed the Mortgage releasing his dower interest in the property. Second National Bank recorded the Mortgage with the Cuyahoga County Recorder on June 19, 2002.

         On April 14, 2003 and November 20, 2003, Defendants executed note modifications which amended the interest period.

         On July 2, 2004, the Note and Mortgage were transferred to Sky Bank, successor by merger to Second National Bank.

         Defendants re-executed and re-acknowledged the Mortgage on July 24, 2006.

         On September 21, 2007, the Note and Mortgage were transferred to Huntington National Bank, successor by merger to Sky Bank.

         On September 25, 2009, Huntington National Bank assigned the Mortgage to Plaintiff SRB Servicing, LLC without recourse, representations or warranties of any kind. The Assignment was recorded with the Cuyahoga County Recorder on March 1, 2010.

         On September 25, 2009, Huntington National Bank assigned the Note to SRB Servicing, LLC pursuant to a Lost Note Affidavit (ECF DKT #29-1 at 31-34). The Affidavit of Huntington Vice President Bobbi Laakso attests that:

I have reviewed the files of Huntington that are related to the loan to which the Note relates. The files do not contain the original Note, nor, to the best of my knowledge, did they ever contain the Note while in Huntington's possession. It is my belief that the original Note has been lost or destroyed and that the attached copy is a substantial copy of the original.

         As of the summer of 2007, Defendant Cynthia McIntyre failed to make full payment of the monthly installments and therefore, was in default under the Note. The unpaid principal amount, current as of September 21, 2009, is $81, 857.57. Accrued and unpaid interest amounts to $175, 758.01 as of January 12, 2019.

         On September 22, 2010, Plaintiff filed a Complaint for Foreclosure and Breach of Promissory Note against Defendants in the Cuyahoga County Court of Common Pleas. These claims were dismissed by the state court without prejudice on May 16, 2011, because a ...


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