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Bank of America, N.A. v. Seymour

Court of Appeals of Ohio, Tenth District

July 16, 2019

Bank of America, N.A., Plaintiff-Appellee/ Cross-Appellant,
v.
Melissa L. Seymour et al., Defendants-Appellants/ Cross-Appellees.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CV-3104

         On brief:

          McGlinchey Stafford, Bryan T Kostura, and Melany K. Fontanazza; Havens Unlimited and Adam M. Schwartz; Manley Deask Kochalski and Kyle E. Timken, for rappelled.

          The Legal Aid Society of Columbus, Scott E. Torguson, and Tabitha M. Woodruff, for appellant Melissa L. Seymour.

         Argued:

          Adam M. Schwartz and Brooke T Bautista.

          Scott E. Torguson.

          DECISION

          KLATT, P.J.

         {¶ 1} Defendant-appellant, Melissa L. Seymour, appeals a judgment of the Franklin County Court of Common Pleas ordering the reformation of a mortgage and granting the foreclosure sought by plaintiff-appellee, Bank of America, NA. Additionally, Bank of America cross-appeals from the same judgment. For the following reasons, we reverse that judgment and remand this matter to the trial court.

         {¶ 2} Melissa has resided at 4648 Faith Avenue in Whitehall, Ohio, for her entire life. Originally, Melissa's parents owned the Faith Avenue property. When Melissa's father died in 1996, the house became the property of Melissa's mother, Joan Seymour.

         {¶ 3} On February 18, 2004, Joan executed a deed that conveyed the Faith Avenue property to herself and her daughter as "joint tenants with rights of survivorship." (Pl.'s Ex. H.) This deed was recorded with the Franklin County Recorder on March 5, 2004.

         {¶ 4} In December 2006, Joan Seymour executed a note promising to pay $107, 850, plus interest, to her lender, Bank of America. Melissa did not sign the note.

         {¶ 5} At the same time Joan entered into the note, both Joan and Melissa executed a mortgage intended to secure the note. In relevant part, the mortgage provides that:

This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender the following described property located [at] * * * 4648 Faith Avenue [in Whitehall, Ohio].

(Pl.'s Ex. B at 3.) The mortgage defines "Borrower" to mean "Joan Seymour and Melissa L. Seymour, her daughter, signing solely to release dower interest." Id. at 1. Under Melissa's signature appears the words "Melissa L. Seymour, signing to release dower interest." Id. at 15.

         {¶ 6} Indisputably, Melissa did not possess a dower interest in the Faith Avenue property. The right of dower entitles a spouse to a life estate in one-third of the real property acquired by the other spouse during the marriage. R.C. 2103.02; Wells Fargo Bank, NA. v. Kessler, 10th Dist. No. 15AP-216, 2015-Ohio-5085, ¶ 16. As Joan's daughter, Melissa could not obtain a dower interest.

         {¶ 7} Melissa, however, did possess a legally recognized interest in the Faith Avenue property. The 2004 deed created a survivorship tenancy because it conveyed to Joan and Melissa an interest in real property for their joint lives and then to the survivor of them. See R.C. 5302.20(A). Under the survivorship tenancy, Joan and Melissa ...


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