Editor: David Reiss
Brooklyn Law School

February 21, 2013

Ohio Appellate Court Holds that Bank Has Standing even though Assignment Was Not Recorded Before Bank Initiated Foreclosure Action

By Abigail Pugliese

In Deutsche Bank Nat’l Trust Co. v. Ingle, No. 92487, 2009 WL 2400852 (Ohio Ct. App. Aug. 6, 2009), the Court of Appeals upheld the trial court’s decision to grant summary judgment in favor of Deutsche Bank National Trust Company (the “Bank”) because the assignment to the Bank was executed before the Bank initiated the foreclosure action.

In 2006, mortgagor executed a purchase money mortgage loan and adjustable rate note from First Franklin, granting the mortgage to MERS as nominee. In 2008, the note was sold and the mortgage assigned to the Bank. Afterward, the Bank foreclosed on the property. After the Bank initiated the foreclosure action, it recorded the assignment. The court granted summary judgment in favor of the Bank, and mortgagor appealed.

The Court of Appeals ruled the Bank had standing to initiate the foreclosure action. Although the Bank did not record the assignment until after the complaint was filed, the mortgage and note were assigned before the Bank filed the foreclosure action. Further, mortgagors never requested an oral hearing, never filed a brief in opposition to the Bank’s motion, and never requested an extension of time to file an opposition brief. Moreover, mortgagors did not provide any evidence to prove their affirmative defenses, counterclaims, or the existence of any material issues of facts.  Thus, the trail court correctly granted summary judgment to the Bank as a matter of law.

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