Editor: David Reiss
Brooklyn Law School

February 21, 2013

Ohio Appellate Court Affirms Summary Judgment in Favor of Bank Despite Bank Commencing Foreclosure Action Before Executing Mortgage Assignment

By Abigail Pugliese

In Bank of New York v. Stuart, No. 06CA008953, 2007 WL 936706 (Ohio Ct. App. March 30, 2007), the appellate court affirmed summary judgment in favor of the Bank of New York (the “Bank”) despite the fact that the Bank initiated the foreclosure action before the mortgage was assigned to the Bank.

Mortgagors executed a mortgage and note with Countrywide Home Loans, Inc. (“Countrywide”). On May 16, 2005, the Bank foreclosed on the property as trustee, while mortgagors denied the Bank was the lawful holder of the note. The Bank then filed a motion for summary judgment and attached an assignment dated October 19, 2005 from Countrywide. The trial court granted this motion and mortgagors appealed.

The appellate court affirmed summary judgment in favor of the Bank. The court stated, “this Court has found case law to support [Bank’s] claim that filing the assignment with the trial court before judgment was entered was sufficient to alert the court and [mortgagors] that [Bank] was the real party in interest.” Therefore, mortgagors were not prejudiced by the assignment and the Bank “was a real party in interest for the purposes of filing the foreclosure action.”

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