Motion-Secondary: THE FIRST NATIONAL BANK OF CHICAGO vs CYNTHIA A THOMPSON

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“ENHET OF

 

\GRT OF COMMON PLEAS

g3ftt |2 "YrONTGOMERY COUNTY, OHIO

The First National Bank:of Ghicago,
Maer yo i :
Plaintiff, | Judge’ Frances E. McGee

-vs-

Cynthia A. Thompson, et al.,

Defendants.

 

| Case No. 2007 CV 08953

Plaintiff's Notice of Filing of

i Dismiss

Now comes the Plaintiff, The First National Bank of Chicago, and hereby files the

following supplemental authority in support of its Memorandum in Opposition to the

Defendant, State of Ohio’s Motion to Dismiss:

Exhibit “A”:

Nature of Authority:

Issued by:
Date:

Case Name:
Case Number:
Holding:

Exhibit “B”:

Nature of Authority:

Issued by:

Date:

Case Name:
Case Number:
Holding:

Decision Denying Defendant State of Ohio’s Motion to
Dismiss

Judge Schneider, Franklin County Court of Common Pleas
January 3, 2008

Deutsche Bank National Trust Co. v. Woodford, et al.
07CVH10-13722

Defendant’s allegation that a foreclosure plaintiff violated
Civil Rule 10(D) by failing to attach the full trail of
assignments evincing ownership of note and mortgage to
complaint may not serve as a basis for dismissal of the
complaint as Rule 10(D) allows plaintiff opportunity to cure
alleged defect priorio dismissal.

Decision Denying Defendant's Motion to Set Aside Judgment
Magistrate Tracey Gonzalez, Cuyahoga County Court of
Common Pleas

January 11, 2008

Deutsche Bank Trust Company America v. Wittman, et al.
CV-07-613952

Ohio Rules of Civil Procedure do not necessitate evidence of
foreclosure plaintit!’s ownership of note and mortgage in the
form of attached trail of assignments to foreclosure
complaint. Decisiun exnressly distinguishes “recent rulings

LSR No. 200745981

 

- eciiinowvwnn

4 PLEAS

: Supplemental Authority in Support of
: Its Memorandum in sition to the
i Defendant, State of Ohio’s Motion to

)Exhibit “C”:

Nature of Authority:

Issued by:
Date:

Case Name:
Case Number:
Holding:

Exhibit “D”:

Nature of Authority:

Issued by:
Date:

Case Name:
Case Number:
Holding:

EXHIBIT “E”:

Nature of Authority:

Issued by:

Date:

Case Name:
Case Number:
Holding:

Case No. 07-8953
LSR No. 200745981

from federal court” as those cases present a jurisdictional
issue unique to those courts.

General Notice

Judge Bender, Franklin County Court of Common Pleas
November 30, 2007

N/A

N/A

In all foreclosure cases before Judge Bender, the plaintiff
must show how it acquired the right to enforce the note and
mortgage if the foreclosure case is brought by any party other
than the original holder of the note and mortgage. However,
this showing is not required until the judgment stage of the
case.

Decision Denying Defendant State of Ohio’s Motion to
Dismiss as Moot

Judge Pater, Butler County Court of Common Pleas

January 8, 2008

U.S. Bank Nat'l Ass'n, as Trustee v. Bryant, et al.

CV 07-10-3950

Where foreclosure plaintiff filed assignment evincing its
ownership of note and mortgage, and bearing an execution
date that predates the complaint filing date, the State’s
Motion to Dismiss based on plaintiffs alleged lack of
standing and alleged failure to establish that it was the real
party in interest was réndcred’moot and therefore denied.

Decision Overruling Defendant State of Ohio’s Motion to
Dismiss

Judge Huffman, Montgomery County Court of Common
Pleas

January 17, 2008

LaSalle Bank Nat'l Ass’n v. Vickery, et al.

2007 CV 8142

Foreclosure plaintiffs allegation in complaint that it is the
holder of a note was sufficient, under doctrine of notice
pleading, to defeat the State of Ohio’s Motion to Dismiss
based on perceived lack of standing, even though the chain of

assignments evincing ownership was not attached to
complaint.EXHIBIT “F”:

Nature of Authority:

Issued by:

Date:

Case Name:
Case Number:
Holding:

EXHIBIT “G”:

Nature of Authority:

Issued by:

Date:

Case Name:
Case Number:
Holding:

EXHIBIT “H”:

Nature of Authority:

Issued by:

Date:
Case Name:
Case Number:

Case No. 07-8953
LSR No. 200745981

Magistrate’s Decision Overruling Borrower's Motion to
Dismiss in Foreclosure Case

Magistrate Bachman, Hamilton County Court of Common
Pleas

November 8, 2007

FV -1 Inc. v. Bradley, et al.

A0707392 .

A foreclosure plaintiff need only attach copies of the
operative note and mortgage to its complaint to withstand a
defendant’s motion to dismiss. Court noted that requiring
the plaintiff to attach all relevant assignments to the
complaint was overly burdensome given the notice pleading
requirements contemplated by Civil Rule 8.

Magistrate’s Decision Denying a Foreclosure Plaintiffs
Motion for Summary Judgment

Magistrate Bachman, Hamilton County Court of Common
Pleas

December 6, 2007

Wells Fargo Bank, N.A. v. Bermas, et al.

40704233

Per the Court: “this court holds that Ohio law does not
require the recording of a mortgage assignment until the
plaintiff in a foreclosure action seeks judgment.” The Motion
was denied on other grounds.

Magistrate's Decision Overruling Defendant, State of Ohio’s
Motion to Dismiss

Magistrate Bachman, Hamilton County Court of Common
Pleas

February 1, 2008

Deutsche Bank National Trust Company v. Barnes, et al.
A0705631” Case No. 07-8953
‘ LSR No. 200745981

        
     
   
 

Holding: The foreclosure Plaiitiff need only attach copies of the
operative Note Mortgage t6 its Complaint to withstand
the Defendants Motion to Dismiss. The Plaintiff need only,
after a reasonable time,give notice of the recording of the
Assignment pf the Mortgage to the Plaintiff.

Respectfully submitted,

 

Cincinnati, OH 45202

(513) 241-3100/(513) 241-4094
attyemail@lsrlaw.com

CERTIFICATE OF SERVICE

This is to certify that a true and exact copy of the foregoing Plaintiff's Notice of
Filing of Supplemental Authority in Support of Its Memorandum in
Opposition to the Defendant, State of Ohic’s Motion to Dismiss has been duly
served upon the following by ordinary U.S. mail, postage prepaid, except as noted
below, this day of February, 2008:

Nadine L. Ballard, Esq.

30 East Broad Street, 14th Floor

Columbus, Ohio 43215

Attorney for Defednant, State of Ohio

Colette Carr, Esq.

301 West Third Street, 5th Floor

Dayton, Ohio 45402

Attorney for Defendant, Montgomery County Treasurer

Dennis M. Hanaghan, Esq.

32 North Main Street, Suite 911
Dayton, Ohio 45402

Attorney for Defendants:
Cynthia A. Thompson
Richard K. Barnhart

Sandra M., Petrey

Ayrica MagillCase No. 07-8953
. LSR No. 200745981

EXHIBIT “A”

,
IN THE COURT OF coMuon PLEAS, FRANKLIN COUNTY, OFZ uv
, PEXCIVIL OIVISLON
tanya :
DEUTSCHE BANK war Tbe ApS

Se

 

PR ag
x. * CouRTs. Gase No. OTCVH1O-13722
CARL #. WOODFORD, et ar., ' Judge Schnaleer
Derencasta. :

 

Rendered this 3 day of Camwaary, 2608.
Schneider, J.

1. Metlon to Dismiss undar Cre. 8. 12131 (5)

A detendant say raise a defense of ‘failure to grate a clabn
upon which reliet can be granted” by motion. Civ. 2. 12cH) Ie).
In construing a cotplaint for purposes =f a Civ. R. 121BE (6)
motion, "it i8 presumed that oll tactuas allegations in the
Complakal are trua and ft must appear beyond doubt that the
plaincif€ can prove no net of facts Warsanting recovery.” Zulick
¥,. Googyens Atomie Corp, 11992), 62 Ohin 5x. 3d $41, 544 felting
O'Bsien vy. Univ, Cormunity Tenants Unson (29751, 42 Ohian Si, 2a
242 (syllabusi); State ex rel. Seikbore v. Wily
Ohia St. 3d 498, 490 (por curiam!

   

msor (1994), 69

(citing Poraz v, Cleveland
{19991, 6& Ohic Se. Ja 383, 399; O'Brien 42 Ohio Se. 2d 242
(syllabusi); Byzd v. Enber (1991), §3 Uhle Sr. ad 36, 6U, As

such, “ail reasonable inferences must ce drawn in favor of tha

Atineving party.” Bysd, 57 Oh:a 3t. 3g at €9 (siting Mitchell Ba* Case No. 07-8953
LSR No. 200745981

Lawgon NL1k Co. 11998}, 40 Ohio St. Jd 190, 192); Seikbert, 69
Ohio St. Sd at 490 ictting Perez, €6 Ghlo St. 3d an 399),
However, “udgsspportad conclusions of a complaint axe not
eensiderse admitted and are not suftticient to withstand a motion
to dlaniss.” Soeikbert, 9 Ohie St. 3d at 496 citing State ex

Fel. Hicsman v. Capos 11999), 45 Ohio St. 3d 174).

 

TI. bascussion

Gn November JO, ?CD7, defendant Stata of Ohio filed its
metion no distisa. On Beceamker 4, detendant State of Chio filed
its amended moticn to ciemiss, Onfendant arguas that plalntife
“fsiled to identify decuments establishing thet it holds che
promisaozy mole and mextgage" and han not “identified the tall
txall of assagnmenta of the note and mortgage from the original
iender or mertgagns” and so has violated Civ. &. 10IDt.

Howover, defendent’s metions are uawarrancted.

Pirst, default judgzent has already been granted in a
Tucgqment entry fLled [tacamber 5. In any event, plaintiff filed a
“Wotiern of Martqage Assignment” vocember 4.

Second, defendant has tailed Lo show that plaintiff's claims
should bo a:omiased for failure to comply with Civ. R. 10D).
Civ, RK. 19{01 doos not estate that a case may bo dismissed for
failure to comply with that rule. Rather, “[t}he proper
procedure in attacking the failure of < plainriff ro attach a copy
of a written instrument . . . is to serve a motion for a definite
statement, presuant to Civ. QR. 121E1.% Hoint Hental Co. v, Posent
(Eranklis 19761, 52 Chin App. 2d 183, 186. Thus, even if

plalaciftf has vielated Civ. RK. 10(U}, dasmissal is not, Case No, 07-8953
LSR No. 200745981

appropeiare.

Becauae tho notions to distiss have boon decided, plaintitr's
mation te astrake uefendent’s amended solisn to dismiss 16
unwarranted.

Vhorafora, glaiutiff?s motion to strike snd defendant's
metaons ty dieriss are DENTED. Counsn) fer plainticr atell
Prepare an apprepriste entcy and submit the prepesed antry te
exnzel for the adversé parties pursuant to Loc, 2. 25.01, a copy
of this decision shail accompany the prapased arcry anen presented

to the Court for gignsture.

 

Caples to:

Fric T. Delghtos, @2q.
24iob Chagrin lve. Suize 200
Cleveland, Ohio 44722
AtLarnay tor Clasreife

Melanie Cornelius, Zeq.

Assistant Attorney General

159 East Gay Street, 21" Floor

Columbus, Ohie 43715

Atlernsy for Oatendant Ghis Cepartrent of Taxation

thamas R. kinters, nq.

First Assistant Att orney, Geners}
38 Eaxt Broad Street, 14° PLoor
Columhus, Ohio 43215

Attorney Tor State of Ohio

Cari H. Hoodford
127% Brockwood Place
Columbus, Ohio 43209
Defendantn Case No. 07-8953
LSR No. 200745981

 

 

49433230

IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

DEUTSCHE BANK TRUST COMPANY AMERICAS Case No: CV-07-613952
Plaintil?

 

Judge: TIMOTHY E MCMONAGLE

Magistrate: TRACEY GONZALEZ,
JACQUELINE WITTMAN, ET AL.

Defendant

MAGISTRATE'S

 

ORDER

DL JACQUELINE WITTMAN MOTION TO SET ASIDE JUDGMENT PRO SE 9999999, FILED 12/26/2007. 1S DENIED, THE.
COURT IS AWARE OF THE RECENT RULINGS FROM FEDERAL COURT “HICH REQUIRES FORECLOSURES TO BC.
FILED BY THE HOLDER AND OWNER OF THE NOTE AND MORTGAGE AT THE TIME OF THE FILING OF THE
COMPLAINT. THIS JURISDICTIONAL ISSUE IS ONLY PRESENT IN FEDERAL COURT. THIS COURT IS GOVERNED BY
‘THE RULES OF CIVIL PROCEDURE THAT APPLY TO STATE COURTS, WE DQ NOT HAVE A PARALLEL PROVISION
AS THAT IN FEDERAL COURT BUT INSTEAD HAVE A MORE LENIENT PROVISION THAT ALLOWS SUBSTITUTION
OF THE PLAINTIFF DURING THE FORECLOSURE PROCEEDING.

 

Magistrate Signature 01/11/2008
CPTSGCase No. 07-8953
LSR No. 200745981

EXHIBIT “C”

COURT OF COMMON PLEAS
FEURKLUN COUNTY HALL OF AUSTIOE 7B

ser monet
COLUMBUS. CHID 42218

22
MDOT 2Deee sEnEED a

NOTICE
EFFECTIVE IMMEDIATELY
IN ALL FORECLOSURE CASES
BEFORE JUDGE BENDER

En every forecinsure caan that is brought by amy party other thon the original
Aokler of the promissory note und mortgage, the plaintiff aust specifically show how it
hus the right to enforce them,

 

EXAMPLE #1: Assignment

The original promissury nute and mortgage were granted to
Smith Morigage Co., assigned to Big National Burk, and
assigned again to Mega National Bark,

‘The foreclosure action is filed by Mega Nationa? Bank.

If the judgment entry does not clearly show how Mega National Hank obtained
the right to bring a foreclosure action, 16, 9 recurd of the assignment from Smith
Mortgage Co. to Big National Rank, and then from Biy National Bank to Mega
National Bark, it will not be approved,

 

EXAMPLE @2:  Successor-in-interest

The original promissory note and mortgage were granted to
Small Nativnal Bank, which hay been acyuinal by Aig
National Bank,

‘The forectasitre action is fited hy Big Notional Rank.
Af the affidavit in support of the summary judgment motion docs nol contain a

Statement that 81y National Ask is the suceexsor-in-interest to Smal! National Bunk,
and if the judgment entry does noi also state the same, I! will not he approved.

 

Attorneys of record should direct any questions to the court's staff attemey at
614-462-5994.

November 3n, 2007Judge
Charis L. Pater
Comnvn Pleas Court
Wcee Gane, Ohin

 

 

Case No. 07-8953
LSR No. 200745981

EXHIBIT “D”
80 jy

LooMM Mtn Coun, 28 Coy,

JAN 0 Ong 47
Choy O08

IN THE COURT OF COMMON PLEAS “or rete
BUTLER COUNTY, OHIO Is.
U.S. BANK NATIONAL Case No. CV 07-10-3950
ASSOCIATION, AS TRUSTEE
(Charles L. Pater, Judge)
Plaintiff
ORDER DENYING AS MOOT MOTION
vs. TO DISMISS OF DEFENDANT STATE OF
OHIO
KIM BRYANT, et al.,

Defendants

For the reasons set forth below, the court hereby finds that the Motion to
Dismiss filed by Defendant State of Ohio is MOOT, and it is therefore DENIED.

This is an action in foreclosure originally filed by Plaintiff U.S. Bank National
Association as Trustee on October 12, 2007. All parties having an interest in the
subject property, commonly known as 18 Millville Avenue, Hamilton Ohio 45103 (the
Property) were joined as parties defendant. ,

On November 8, 2007 Plaintiff filed its First Amended Complaint adding as a
party defendant the State of Ohio, on the assertion of that the State has several tax
liens against the Property. Count 1 of the Amended Complaint asserts that Plaintiff is,
the holder of a Note signed by Defendant Kim Bryant and that Bryant has defaulted in
her obligations to make payments on the Note. It claims that Bryant owes Plaintiff
$83,637.29 plus interest on the Note. Attached as an exhibit to Count 1 is a copy of
the Note. Bryant's signature appears on the Note as the borrower, but the lender is

listed as Argent Mortgage Company LLC.1 dge
Charl L. Pater
Comme “eas Court
utlee ¢ unty. Ohio

 

 

Case No. 07-8953
LSR No. 200745981

Count 2 of the Amended Complaint states that Plaintiff is the holder of a
mortgage on the Property given by Bryant to secure her obligations on the Note.
Exhibit B is a copy of a properly mortgage, granted by Bryant granted the to Argent
Mortgage Company LLC.

On November 21, 2007, Bryant was served with the Amended Complaint by
certified mail. She is in default of answer.

On December 6, 2007 Defendant Siate of Ohio filed a Motion to Dismiss
pursuant to Civil Rule 17. The Motion argues that because Plaintiff is not Argent
Mortgage Company Plaintiff is not the real party at interest, and there is no actual
case in controversy. As a result, this court lacks jurisdiction. The State's alternative
argument is that if the court determines that-it has furisdiction, it should order the real
party at interest be substituted for Plaintiff.

Plaintiff has vehemently opposed the Motion, and it has also filed its Notice of
Filing of Unrecorded Assignment of Mortgage. Plaintiff's Notice attaches a copy of an
assignment of mortgage of the Property that is dated November 28" 2007. The
assignment is given by Argent Mortgage Company LLC to Plaintiff, and the Notice
states that Plaintiff has submitted the assignment to the Butler County Recorder's!
office for recording. Further, it avers that Plaintiff will promptly submit a copy of the!
recorded assignment of mortgage to the court upon its receipt of a copy from the
Recorder.

We find that Plaintiff's Notice sufficiently responds to the arguments raised by,

the State in its Motion such that the State's Motion is now moot. Accordingly, the

 

Motion is hereby DENIED.° Case No. 07-8953
LSR No. 200745981

ENTER

Charles L. Pater, Judge

cc: Elizabeth S. Brashear
Nadine L. Ballard

Judge
Charles L, Pater
Common Pleas Court
Butier Cunnry, OhiCase No. 07-8953
LSR No. 200745981

EXHIBIT “E”

ne paiiiitionvom
“Argo AED :

ORT FE A
88 8417p.
“OUR Pity
' a 356

134

    

§N THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, Ot110

LASALLE BANK RATIONAL ASSOC.. CASE NO. 2007 CV S142
Plain.
JUDGE MARY KATHERINE HUFFMAN

we
i DECISION. ORDER AND ENTRY

LYNAEITEK VICKERY, ot of, OVERRULING DEEENDANL STATE OF
! SHIO'S MOTION TO DISMISS
i Defendants.

 

This matter is before the Court on the Motion to Dismiss filed by Defendant. State of
Ohia, an December $, 2007. On December #9, 2007, Plaintiff filed 2 Meimorsndum i
‘Opposision to the Defendant, State of Ohio's Motion to Dismiss, The Detendant, State of Ohio,
then filed a Reply to Plaintiif's Memorandum Contra to Motion 19 Dismiss on Junuzry 4, 2003.

“this matter ix now tipe for review.

L_EscTs
‘The Piains Compl. ar $f 1, 2.

‘7 Compl. at 73

+ /Mot. to Dismiss, Ex. A.
$7 Mem. Contra,Case No. 07-8953
LSR No. 200745981

excluded by the court, the motion shall be treated as a motion for summary
judgment and disposed of as provided in Rule 56. Provided however, that
the court shall consider only such matters outside the pleadings as are
specifically enumerated in Rule 56. All parties shal! be given reasonable

Opportunity to present all materials made pertinent to such a motion by
Rule 56.

“{I}n order for a court to dismiss a complaint for failure to state a claim upon
which relief may be granted, it must appear “beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.” Furthermore,
“{iJn construing a complaint upon a motion to dismiss for failure to state a claim, [the
court] must presume that all factual allegations of the complaint are true and make all
reasonable inferences in favor of the nonmoving party.”” “Consequently, as long as there
is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff

to recover, the court may not grant a defendant’s motion to dismiss.”

Real Party in Interest
Civil Rule 17(A) states:

Every action shall be prosecuted in the name of the real party in
interest. An executor, administrator, guardian, bailee, trustee of an express
(cust, a party with whom or in whose name a contract has been made for
the benefit of another, or a party authorized by statute may sue in his name
as such representative without joining with him the party for whose
benefit the action is brought. When a statute of this state so provides, an
action for the use or benefit of another shal! be brought in the name of this
state. No action shall be dismissed on the ground that it is not prosecuted
in the name of the real party in interest until a reasonable time has been
allowed after objection for ratification of commencement of the action by,
or joinder or substitution of, the real pa.ty in interest. Such ratification,
joinder, or substitution shall have the same effect as if the action had been
‘commenced in the name of the rea} party in interest."!

774 Ohio R. Civ. P. 12(B\ West 2007).

* 1 York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144 (quoting O'Brien v. Univ,
Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245).

° 1 Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3¢ 190, 192.

"7 York, supra, at 145,

11 Qhio Civ, Rule 17(A)(West 2007).

20Case No. 07-8953
LSR No. 200745981

A similar set of facts confronted the Seventh Appellate District. The court
incorporates the following portion of the decision for the edification of the parties:

Appellant filed a motion to dismiss under Civ.R. 12(B)(6) for
failure to state a claim along with Civ.R. 17(A), requiring a suit to be
brought in the name of the real party in interest, Under this assignment,
appellant cites cases that require a lawsuit to be brought in the name of the
real party in interest. Appellant argues that the record does not show
Washington Mutual's interest in the note and mortgage,

eae

As appellant concedes, a motion to dismiss can be granted only if,
after all the factual allegations in the complaint are presumed true and all
reasonable inferences are made in the plaintiff's favor, it appears beyond
doubt that the plaintiff can prove no set of: facts warranting relief.
Cincinnati v. Beretta USA Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768
W.E.2d 1136, at J 5; Stone v. N. Star Steel Co. (2003), 152 Ohio App.3d
29, 33, 786 N.E.2d 508. As Jong as a set of facts consistent with the
complaint would allow plaintiff recovery. the court shall not grant a
motion to dismiss. Beretta at ¥ 5.

Here, Washington Motual’s complaint states that it is the owner
and holder of the promissory note and mortgage. It is well established that
the real party in interest in such a case is the current noteholder/mortgage
holder, which, due to the possibility of assignment, could be different from
the original holder. See Conrad y. Rarey (1931), 125 Ohio St. 326, 331-
332, 183 N.E. 444. See, also, 1970 Staff Note to Civ.R. 17(A).

Under the aforestated premises behind motions to dismiss, we must
thus presume that Washington Mutual's statement is true. If this statement
is presumed true, then Washington Mutual is considered to be the real
party in interest for purposes of the pretrial motion to dismiss stage of the
proceedings. As such, the trial court correctly refused to grant the motion
to dismiss at a time before the allegations of the complaint were required
to be proven. Accordingly, this assignment of error is overruled.
The court finds the legal conclusions and rationale in Green to be highly
persuasive. The court further finds defendants’ Civil Rule 10(D) argument similarly
unpersuasive. The original note and mortgage execited by the defendant were attached

to the complaint. It is upon these documents that the plaintiff seeks relief in the instant

21Case No. 07-8953
LSR No. 200745981

action. Furthermore, to require plaintiff's to attach all relevant assignments at the
pleading stage seems overly burdensome, given the notice pleading requirements
contemplated in Civil Rule 8. Clearly, the defendant is on notice as to the nature of the
claim and the amount of rclief sought by the plaintiff.

Upon the review of the filed memoranda and argument of counsel, presuming all
factual allegations of the complaint arc true, and making all reasonable inferences in
favor of the plaintiff, the court finds a set of facts exists, consistent with the plaintiff's
complaint, which would allow the plaintiff to recover. Defendant’s motion thus lacks
merit.

DECISION
Defendant Brenda Bradley’s Motion for Dismiss is DENIED. The case shall next

be heard before the Common Pleas Magistrate on January 10, 2008 for case management.

ed fchald Wochrm

MICHALL L. BACHMAN
MAGISTRATE
COURT OF COMMON PLEAS

NOTICE

Objections to the Magistrate’s Decision must be filed within fourteen days of the
filing date of the Magistrate’s Decision. A party shall not assign as error on appeal the
court’s adoption of any factual finding or legal conclusion, whether or not specifically
designated as a finding of fact or conclusion of law under Civ. R. 53(D)(3)(a)(ii), unless
the party timely and specifically objects to that factuel finding or legal conclusion as
required by Civ. R. $3(D)(3)(b).

 

27 Washington Mutual Bank, F.A. v. Green (Mar. 17, 2004), 156 Ohio App.3d 461, 463-464
(App.7 Dist.). :

22Case No. 07-8953
LSR No. 200745981

Copies sent by Clerk of Courts to:
Lawrence C. Baron, Esq. Erin A. Jochim, Esq.

NX Assistant Prosecuting Attorney Lerner Sampson & Rothfuss
230 East 9” Street, Suite 700 P.O. Box 5480

Cincinnati, OH 45202 Cincinnati, OH 45201-5480

Noel M. Morgan, Esq.

Legal Aid Society of Southwest Ohio
215 East 9" Street, Suite 500
Cincinnati, OH 45202

CERTIFICATE OF SERVICE

 

1 HEREBY CERTIFY THAT COPIES OF THE FOREGOING DECISION
HAVE BEEN SENT BY ORDINARY MAIL TO ALL PARTIES OR THEIR
ATTORNEYS AS PROVIDED ABOVE.

Date:_/4 2-07 _ Deputy

23Case No. 07-8953
LSR No. 200745981

EXHIBIT “G” IU mT i 4
1688?
COURT OF COMMON PLEAS preg ~ 438
HAMILTON COUNTY, OHIO Yager
WELLS FARGO BANK, NA. > Case No, A0708233
Plaintiff, , > Judge Maral

Vv.

MAURO A. BERMAS, aka ;
MAURO A, BERMAS, JR., ct al, : : : C

Deferndants. :

 

RENDERED THIS 614_ DAY OF DECEMBER, 2007.

This foreclosure case is before the court on plaintifT Wells Fargo Bank NA."s
C'Welts Fargo“) Motion for Sununezy Judgment. The motion was hear! before the
Connon Pleas Magistrate an November 19, 2007, at wich time the matter was woken
under submission.

BACKGROUND

Defendants Mauro A. Bernas, fr, ond Mares B. Bermas (“the Bermases”)
executed a promissory note (“Note”) with Aegis Lending Corporation C’Acgis”) in the
amount of $104,060.00 en or about May 24, 2004.' To sezure repayment of the Note, the
Bezmases executed and delivered to Aegis a mortgage tea real property located at 3799
Woodsong Drive, Cinzinnali, Ohio 45251 Cthe Progesty")." The mortgage was duly
recorded.’ Wells Fargo avers It to be the Lotder of » Note executed by the Bermeses, and

chat an assignment of the instant mortgage in its favor has teen duly recarted?

 

* sot fhe Summ. J, Bx. A.
2) Cocspl., Bx. A.
Sead

* 2 AIT, ng to Rend Pasty in Interest, Jul, 11, 7097

24Case No. 07-8953
LSR No. 200745981

Wells Fargo argues that che Rermayes defaulted on the Nate? As 9 result of the
defauk, Wells Fargo clected to accelerate the remaining belance * Wells Fargo demands
Judgment against the Bermases, that its tien be sdyedged a valid firs: lien upon the
Property, and that the property be sold at euction with the proceeds of the sale be applied
ta te sstisfaction of the aforementioned Note togtthtr with al! costs and fees to which it
is eniited.”

SUMMARY JUDGNIENT STANDARD

Pursuant to Rule 56(C), summary judgment may be grated when the moving
purty demonstrates that (1} 19 genuine issue of any neterial (aet remains 10 be litigated,
(2) the moving party is entitied so judgment a5 a matter of law, and (3) when viewing the
evidence most srongly in favor of the conmoving pary, it appears that reasonable minds
ean come to but ont conclusion, and thet conclasion is adverse to re nonmoving parry.’
‘The moving party “bears vs initio} burden of informing the trial court of the basis for the
motion, and identifying those ponions of dse resurc L.. demonstrate the absence of n
genuine issue of material fect on the essential elemcet{s) of dse Reamoving party's
clains."* Doubts must be resoved in favor of the noamaving pany."? A nonmovant may
hol fest on the mere allegations or denials of his plead:ngs, but must set forth specific
facts showing there is a genuine fasue far trial,!’ Addivoaally, the moving party bears the

initia! burden of disproving the ronmovant's affirmative defenses in its motica for

 

11 Compl, 61 43; Mot foc Summ J.(AfT. of Chyton Sobarlat 194-5).

£7 Met fice Samm. J. (AME. of Clayton Scharf 14 $1),

*/ Compl, tt 3-4.

{J State as est, Grady v. State Emp. Retartons lid, (1997), 78 Oko Suid U8t, 187.

* 4 Dresher ». Bsre (1996), 78 O80 S130 240,293.

7 ddenphiy » Reyesotdsdurz (1992), 68 Obs0 St.3d 156, 338-59,

“'eChamy-y Clark Cig: Agricwttural Soc y (1992), 90 Olin App.3d 21, 424 (App. 2 Dist).

25Case No. 07-8953
LSR No. 200745981

summury judgment? If the moving pasty satisfies its initial burden, “the nomnaving
perty then has 8 reciproca! burden . .. io set farth specific facts showing thet there isn
Beauine issue fos tial and, if the nonmovant does not so respond, surinary judgment, if
sppropriaic, shail be enteved against the reamoving party." However, summary
Jedgment must be awarded with caution.'*

Wells Fargo is the holder af the Note as well ss the mortgage assignee of recurd.'!
Wells Fargo argues the Hermases defaulted on the Note."? The Bermases do not deny
executing the Note ard mortgage, but deny being it default on the Nate."? They allege
the following affirrative defenses: 1) Complzint fails to state a cliem upon which relief
con be granted, 2) plaintiff iz nut the real party in interest, 3) the amount plaintiff claims
due and owing inchides improper charges, 4) plaintiff has unclean hands, 5) the toan is
unconscionable, and 6) defendants have he ability to eure the defexl.'! The court finds
Wells Fargo has enet its initial busden of proof.'* The court ostdresscs the Bermas’ rea!
parvy in interest affirmative defense first.”

 

1 EABN AMRO Mortgage Grovg, Inc.» kbgwra, ot of, Fed, 11,2905) 259 (hia App.3d 608, 611-12
Arp. 2 Dist),

ieee 95 Ola $1.34 at 293,

“i Nawtty Ohio Standard Ort Co. (1982), 70 Oto $1.20 I, 2.

rate 48 to Real Party in Interest, Ja. 11, 2007,

"tid ad,

Y ) Bradivd ». Hote (1902), G7 Ohto St. 346, syltabus, para, 1; Ktag v. Suiford {1859}, 19 Ghin St. $87,
53% Gant « Olywapia Fitrecs Cemtey, Ine. (F-ne 21, 1993), BS Ohio App 3d 316, 3:5 (App. # Dai),
PeThe court notes Wells Fargo addreaied the Boreas’ affirmative defeasen in its reply tel Gled
November 29, 2092.

26arty in Inte:

Case No. 07-8953
LSR No. 200745981

The Bermases assert that Wells Fargo “is rot the real panty in interest. and

therefore [the} complaint must bz dismissed. Civil Rute 17{A) eentes:

Every action shal be prosceuted in the name of the real party an
interest. An executor, administrator, guardian, bailed, trustee of an express
bust, a party with whom or in whese tame a cuntruct has been made for
the benefit of another, oF a party authorized by statute may sue in his name
‘as such representative without joining with him the party for whose
Venetit the action ia brought. * * * No action shall be dismissed on tla
Bround chat it is owt prusecuted in the name of the ren. party in interest
und a reasonable time bas teen allowed after objection far ratificatian of
comunencement of the action by. or joinder or substitution af, the rea.
Pauly in interest. Such rmtification, joinde:, or wubstitutian shajl Save the
samme effect as if the action had been commenced in the came of the rea)
party in interest

Vireually identical arguments to srbstannally similar facts were also made in a

case previously ruled en by this court.” 1a ruling o the plaintiff's motion for semmary

judgment, this cour: stared:

The Byrds sigue FV-I filed its complaint without being the holder
of Lie Note or the assignee of the mortgage at issue. They argue Civil
Rale 17 requires FW-1 to amend its complaint.” FV.1 argues it complied
wath the requirements of Civil Rule 17(A) by rstifying its position as
plantiff ror to socking judgment by recording the morgage.
assignment.

A similar sot of facts rvozntly contronted the Niaus Appellate
District. The court incazporates the following Portion of the decision for
ibe edification of the parties:

‘The issve to be determined is whether appellee was the rea!
party in interest or not. Actions must be prosecuted in the nnme
Of the rea) paity is) interest. ‘The rea’ parly in interest has been
defined 23 the party who wil) directly be helped or harmed by the
outceme of the action, The real party in interes: must bave ¢ real
interest in the subject matter of the litigation and iu merely an

AeA MUTA.

8 7 Obie Civ, Rute 17(a)(West 2097)

* 4 Weth Farge Bank ». Gloria Byrd, AGTCCGAY (J. Martin),
Ee Dtoen, in Opp. st 1-2.

Bria

Pe btot for Seren. J, ot 3-4, PI.Roapy 1-2,

27interest in the oucarne of the case. Shealy v. Cunpbell (1988), 20
Ohio St3d 23, 24. He or she must have some interest in the
Subject matter of che litigation o1 be the person who enn
dischaspe the claim on which the sit is brought, Jn re Highland
Haliday Subdivision (1971}, 27 Ohio App.2d 237, 240.

if @ pasty is not the reat party in interest, the party lacks
standing ta prosecute the action. State ex rel. Tihs Jones v
Starter (1998), 84 Ohio St.3d 70, 77. However, an action will not
be dismissed o2 this ground unti; 3 revsonabic time has been
allowed for the real party in interest tp mtify the commencement
of the action or to be wither joined or substituted a5 a party.
CivR. 12(A), Tho purpose behind Civ.R. 17 is “to euable the
defendant to avai; himself of evidence and deferses that the
defendant. hss agninst the real party in interest, and én assure him
finality of the judgmen:, and thei he will be protected against
another suit brought dy the real party in intesest on the same
moter,” Sheaty, 20 Olio $1.3 21 24-25.

Jn its motion for suramary judgment. appellee argued that
appellants were in default in the payment of the promissory note
they issued to America's Wholesale Lender and the terms of the
sbortgage decd given to secure the pmmissory note, Appelice
Farther asserted chat it was the lawful] bolder of the promissory
note and, thesedare, had the myht to forectose on the marigage. In
Suppor of its mutian, appellee allache? «b> o-nmissory note dated
July 7, 5999, from appeliants to Amezica's Wholesale Lemfer; the
assignment of the mortgage ftom Ameries's Wholesale Lender to
appelles; and an affidavit from an officer of Countrywide Home
Loans, ine., d’tvaf Amesica's Wholesale Lender, stating the total
amount duc and owing from appeliants as of Marth 14, 2005.

In their memorandum opposing appellee's motion for
summary judgment, appellants argued thet appelles did not have
a valid assignment of their moryage when oppeiles filed its
complaint. Appellants elso pointed ou the fact that the
assiguinent fram America’s Wholesale Lender to appellee kad an
effective date of more than five months after appellee fited its
complaint for foreclosure. Appellants further argued that appellee
could not legally foreclose on the mortgage in question withaut
seeking end being granted ltenve of the court to file 9
supplemental camptaint.

Although appellants argue that appellee was required to file &
Supplemental contplaint in order t) proceed with the foreclosure
action, thcy have failed to cite any case law to support their
asguinent. While it not this Court's job to create uppellanty’
arguement for them, thia Court hat been unable to find any case

28

Case No. 07-8953
LSR No. 200745981law to suport appellants’ pasitien. However, this Court has
fesund cass law to suppost zppeliee's claim that filing the
essigament with ui triad court before judgment wes entered wis
sufficient to alert the court ard sppeilanis thet appellee was the
real party in interest. See Campus Sweater and Sportsweer Ca, v.
24.8. Kahn Constr. Co., (D.CS.C. 979), $15 F Supp. 64, 84-85
(The count held that bec2use the assignment of the corse of action
(ook place a year before trial, that the defendant was not
Peejudiced by che essigrnent and that the assignor was
effectively precluded from tringing any sult on the cause,
assignee was the real party in interest to being the suit). See, alvo,
Dubugne Stona Prods Co. v. Fred L Grey Co. (0.4.8, 1966),
336 F.2d 718, 723-724 (The cous held that insurance ageat
which was nota party to the contract nevertheless was a real
party in interest and could sue for premiunts owing on insuranot
contmes in view of an all inclusive assignment from insurer to
agent. Assignment was not reodered invalid by having beer made
afver the filing of the compiaint bocause it was made before tra!
and defendant showed no prejudiee.}.

{n the present matter, appeliants bave filled to show that they
were prejudiced by the assignment, In addition, the assigunent
did preclude America’s Wholesie Lender from bringing on
ection against appellants, Therefore, this Court finds dau uppetlee
was s real party in interest for purposrs 0: filing the foreclosure
action. Consequently, the trial court oncrectly awanted sucunary
judgment in favor of appellec. (Appellent’s first and second
assignments of crear are overruled?!

Case No. 07-8953
LSR No. 200745981

‘The court finds the legal conclusions und rationale in Stuart tp be

highly persuasive. The court further notes the Byrds’ request for this court
to adopt the forectosure policy recently implemented by the United States
District Court for the Southem District of Otve.’* ‘That policy requires
foreclosure plaintiffs to record their oxsignments of morgage prior to, or
comemporary with, the filing of the complain.”
prophylactic policy is highly laudable, this court's policy of sequiring
atiomeys of foreclosure plainti[fs to Fle ps affidavit of real party in
intexes remains effective in insuring c.ly mortgngers of record obuin
jodgment in foreclosure cases?

While such a

TF Bank of Haw York, of oh v, Smart, ot al. Qdse. 30,2907), Lorian No, UGCAUDSIS3, 2003-Ohip- 143 at

848-13,

2 Tee defendzats roqoess was made dicring the bearing. Counsel for tke defendents proviins a oopy oF
the General Order to the coxa,

9 Geo, Oxcut No, 07-03, $.D. Obsa, May 12, 2007 zx § 1.24,
47 Tee Affidavit ns to Real Party tts letsres! mak aver Und the psintif is tho holder af the nots and the
sncignte of the somgngs Unstuding Gat thn ssvignment af the aortgnge bas been duly reetuded);
Magittrois's Decitivn, AGTCO643, kei. 23, 2007.

29Case No. 07-8953
LSR No. 200745981

A requirement in record an assignment of thr mortgage pricr to filing a
foreciosuse complaint unnecessarily ploces greater impartanse upon the reeardutina of
mortgage assignments than the law or clvil procedure require. Quite simply, the real
puty in mterest in o foreclosure ection is any party which fs entitled to enforce the Note.
Under the Uniform Commercial Code as codified in Ohio, parties ta a Note, subsequent
holders of the Note, nonkolders in possession of the Nate who have the rights of holders,
and persuny not in possession of the Note who are entitled to enforce the Note pursuant to
other statutory requirenems, may enforce the terms of the Note as to cach othes??
Parties under these legal cacegorics may entorce the tenns af tet Note even if de Note is
tost, stolen, or desuoyed.” Such a legal status makes a plaintiff the real party in interest
al the Line th: complannt is Filed.

Deferdan:-homeowness know whether or not they are making the morgage
payments required of tiem under the ters of the Note they signed. ‘The right ta enforce
those obligations tes with the other party and their assignze’s regacdless of real property
records an file in a county's recordes's office. The court is hard-pressed to envision a
socoario in which a financial institution would seck to file a forechasure action without
having some form of ownership an the Nate in question, The facts of this ease do rot
indicate such an exumordinary cireumstance.

The tea) properly represents the collateral securing the obligation to repay the
debt the Eorrower incurred under the Nole. The recomding of the mortgage becomes
necessary to ascertain the priority of additions: lienkolders. Such a determination nood

not be made unti] judgment is renctered on the complaint. Furthermore, only when the

Y J Seu 214), und § 378 Negouiadle Insiramems; Chlo Rev. Gass § 1300 3 MA){ West 2097).

30Case No. 07-8953
LSR No. 200745981

teal property is set for sale does the recarding of the mortgage assignment become
nevessitry (9 insure clear tile to prosgective buyers at the ssubsequem judicial sale
Because the righis of other lienhotuers need not be ascertained puinz to Judgment, and the
shotilf camot sell the property abset a jodgment entry and deczee in foreclosure, and
Civil Rule '7{A) allows plaintiffs a reasonable amount of time to retify the
sommenceret of the action, this court holds thal Ohio law does not require the
recording of a mortgage assigrment unti) the plaintiff in a forcelosure action secks
judgment. Any judicial requirement to the contrary is mereiy propaylactic.

Wells Fargo hos avecred to be the Suter of the Note.” The coum finds Wells
Turgo has met its initial bisden of iisproving the Bermas' Real Party In interes:
affirmative defense.
Pal State. i nw lief can u

Wells Fargo argues d:e Bermases defanited ‘ond that che Note hed been
aceslersied.”? The Bennases deny being in default.>” but claim they have the funding to
“cue eny default and arrearage existing at this time.”? The cour hos olso fowad the

Weils Fargo to be the real party in interest at ail simes during this suit. The court finds

 

87700, Jur.3d § 378 Negetiable tnstrumanis; Obiv Rev. Code $4 $300.2 1{AQ3), 1393.38 (West 2007)

49 Ghio Rev. Code § 3303.01 (BMI XbN West LOT “The recardlng ef the {aseigage] instrezent in the
affics of the coxmy recorder of the comity in which the subject peaperty is situated is constructive potice of
the ixstrumen: te of] persans inctoding wathou! limitntion, u subseqaeut purchaser in peed faith or any
siher subseqawa baider af as inerest le Gw property(J"Xemphass 2dded), Sue atin Ohiv Rev. Code §
5301 25(AX West 2COFC AI deods, znd contraccs reterved co in davitteu (AXQY) of section 327.08 of she
Revised Code, and instraments of writing property executod for the cenveyance or encumbrarce at beste,
tesemients, o keceditaments, . . . shalt bo recorded in the office of te county recorder of Ge oouuty
which the preerises are sinstine Until so reconded or fed for reenré, they sre fraisduleest insever a3 day
relute to a syfveguens bona fide purchases braving, at the tune of purchase, co anowledge of the mustence of
thas former dred, land contract, ce inscuument."|(emphasis edded).

"Mot for Semen. 1, (AU, of Cligtan Scberf at 4 3).

49 spot for Scmem, J. (AKL of Chaytan Scterf at $4] 4-5)..

sans et 412.

“faa et

31Case No. 07-8953
LSR No. 200745981

Wells Fargo hus met its initial burden of proof? und that the Benmos’ claim is nothing
more then an additions! means of asserting their cea), pany in interest argument. The

‘court finds thal argument lacks merit for the reasoas addressed above,

ount plain: aims due and owing incladss
The cawt finds this is not an affirmative defense to the action, but nether an
arguinent as to the extent of the judgment
inti in hands & anconscionabitity of @ i
The Bermases assert the: Wells Fargo is subject to whatever infirmities oxtached
to them by the acts ar amissions of the onginsl lender” However, “Laine who qualifies
as a holder in due course takes the instrament free trom a‘l claims|.f"”

Subject to division (C) of this section end divisiun (D} of seclian 1303.05
of the Revised Cade, “holder in due covree" means the ho'der of on
instrument if both of the fallowing apply:
(1) The instrument when igsved or negotiated tn the holder does not bear
evidence uf fargery of altemtion that is so apzerznt, of is not otherwise 20
izreguiar or incomplete as to cali into question ite acthenticity:
(2) The holder took the instrament under oll of the following
circumstances"
(a) Fos vatue;
(b) In good faith;
(c} Widsour notice that the instarnent is overdue or has deon dishonored
or thst there is an tncured defavit with respect to payment of another
instrument issued as part of the same series:
{¢) Without cotice that the instrument coming an unauthorized siguature
or bos been altered:

>  (¢) Without natice of any claim. to the instoczent as described in section
1303.36 af the Revised Code,
() Without notice that any party has a defensé or claim in recoupment
described in division (A) of section 1303.35 of the Revised Code.‘

 

"+ Brasjord v, Hate (1902), 67 Obie St 326, syllavax, pars. |: King v. Safford (1859), 19 Chic $1. $87,
$88; Gost y. Ojjagpia Pummess Center, tne. (June 2), 1593), 64 Ole App.3d 220, 315 (Arp. & Dis).
¢ Ags 39926, 27
“77 O. fur.3d § 307 Negoriebly Inszuments, Protection ex Hebées in Due Course.
“12 Ohio Rev. Cade $1303.32 (West 2001),

32Case No. 07-8953
LSR No. 200745981

The Bermas' atgue Wells Furgo has faiied to make the requisite showing it isa
holder in due course.” As Wells Fargo has not inede such a showing, the court finds the
plaintiff has failed to moet its initial burden of proof as to these affirmative defenses.

icfendants have the ahitity te en ic!

Asa holder of the Note, Wells Fargo is entitled to exforee the acceleration clause
contained there:n, The court finds the ability to cure a defauh by paying the overdce
amount on the Note dees 10* constitute an affirmative defense to the instam secon.

When viewing al] the facts most stongly in the Bermss' faver, the court finds a
genuine issue of material Iact remains to be ‘itigated regarding Wells Fargo’s status os a
holder in due course. Wells Fargo is therefare not udilled to judgment as a maner of aw
at this cime.

 

°F Mem, Comra, Nov. 16,2002, at 2-6,

33Case No. 07-8953
LSR No. 200745981

DECISION

Plaindff Wells Pergo Bank, N.A.'s motion for summary judginent is DENTRD_

Lital if Mido

MAGISTRATE
COURT OF COMMON PLEAS:
Copies seat by Clerk of Couns to:
Lawrence C. Baton, Esc. Cercy K. Steffen, Esq.
Assistant Prosecuting Altomey Ben Carnshan, Esq.
230 Enst 9” Street, Suite 700 Shapiro & Fetty
Cincinnati, OFL 45292 1229 West 3" Street, Suite 400

Cleveland, OH 44133
Jason A. Fountain, Esq.
Legal Aid Society of Southwest Ohio
235 East 9" Stroct, Suite 500
Cincinnati, OF 45202

NOTICE

Objectiuns ta the Magistrate's Decision mast be filed within fountcen days of the
filing date of the Magisume’s Decision. A party shail oot assign as error on cppeal the
court's adoption of any factual finding or legal concjusion, whether or ont specifically
designated os a finding of fact or canclusian af law under Civ. R. SSDX3)a}{i}, uniess
dhe party timely end specificatly objects to thar factual finding or legal conctusion os
roquised by Civ. R. 53(D)3X(b).

CERTIFICATE OF SERVICE,

1 HEREBY CERTIFY THAT COPIES OF THE FOREGOING DECISION
HAVE BEEN SENT BY ORDINARY MAIL TO ALL PARTIES OR THEIR
ATTORNEYS AS PROVIDED ABOVE.

Nate; _/2-0-07 nes Qe a oe

Ww

34