Bank of America, N.A. v. Miller

2011 Ohio 1403, 956 N.E.2d 319, 194 Ohio App. 3d 307
CourtOhio Court of Appeals
DecidedMarch 25, 2011
Docket2010-CA-60
StatusPublished
Cited by8 cases

This text of 2011 Ohio 1403 (Bank of America, N.A. v. Miller) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of America, N.A. v. Miller, 2011 Ohio 1403, 956 N.E.2d 319, 194 Ohio App. 3d 307 (Ohio Ct. App. 2011).

Opinions

Fain, Judge.

{¶ 1} Defendants-appellants, Stephen and Elsie Miller, appeal from a judgment of foreclosure rendered in favor of plaintiff-appellee, Bank of America, N.A. (“BOA”). The Millers contend that a genuine issue of material fact exists regarding whether BOA is the real party in interest entitled to judgment on the note and mortgage in question. The Millers also maintain that a genuine issue of material fact exists concerning whether BOA is the holder of the note upon which judgment was sought. Finally, the Millers contend that a genuine issue of material fact exists regarding whether BOA is a successor in interest to Society Mortgage Company, which was the original payee on the note and the original mortgagee on the mortgage.

{¶ 2} We conclude that the trial court erred in rendering summary judgment in favor of BOA. Genuine issues of material fact exist regarding whether BOA is the real party in interest and regarding whether BOA is the holder of the note upon which judgment was sought. We further conclude that there are genuine issues of material fact regarding whether BOA is a successor in interest to the original payee, because BOA failed to submit a proper affidavit to support its claims. Accordingly, the judgment of the trial court is reversed and this cause is remanded for further proceedings.

[310]*310I

{¶ 8} In August 2009, BOA filed a foreclosure complaint against the Millers. BOA alleged that it was the successor by merger to Society Bank and that it was the holder of a note, a copy of which was currently unavailable. BOA further alleged that the Millers had defaulted on the note and owed $130,059.18, plus interest from March 2009. In addition, BOA claimed that the note was secured by a mortgage, the conditions of which had been broken. BOA therefore asked the court to foreclose and order the property securing the mortgage to be sold. The Millers responded by denying, among other things, that BOA was the holder of the note.

{¶ 4} In October 2009, BOA filed a document entitled “Notice of Filing Note,” and attached a note as Exhibit A. In Paragraph 1 of the note, which is entitled “Borrower’s Promise to Pay,” the borrower promises to pay the “Lender,” Society Mortgage Company, the sum of $190,000. Paragraph 1 further states that:

{¶ 5} “I [the borrower] understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payment is called the ‘Note Holder.’ ”

{¶ 6} At the end of the note, the following statement appears:

“Pay to the order of_
“Without Recourse
“SOCIETY
“Mortgage Company
“By: -
“Name: Adair B. Cooper
“Title: Secondary Marketing Officer”

{¶ 7} Some type of writing appears next to the word “By” that looks like a signature, although it is scribbled and illegible. The note also contains signature lines and the apparent signatures of the Millers.

{¶ 8} In early December 2009, BOA filed two documents entitled “Notice of Filing Merger Documentation.” Attached to the first notice, as Exhibit A, are copies of documents relating to alleged mergers of various banking entities. Many of the copies are of poor quality and are illegible in places. The first page of the exhibit is entitled “Bank of America, National Association, Certificate of Secretary.” A person identified as an assistant secretary of BOA relates a history of mergers between various entities, and states that the documents attached are true and accurate copies of documents filed with certain states or [311]*311issued by certain offices. The certificate of the assistant secretary is not notarized, nor does it contain any indication that the matters referred to therein are within the assistant secretary’s personal knowledge. Furthermore, the attached documents are copies, not originals, and at times are incorrectly ordered. The documents are also illegible in numerous instances. The content of the second notice of filing merger documentation appears to be identical to the content in the first notice, but some of the copies are slightly more legible.

{¶ 9} According to the assistant secretary’s “certificate,” Society Mortgage Company merged into KeyCorp Mortgage in April 1994. In turn, KeyCorp changed its name to Nationsbanc Mortgage Corporation of New York in March 1995. Later the same year, Nationsbanc New York merged with a Texas corporation that was also called Nationsbanc Mortgage Corporation. In December 1999, Nationsbanc Mortgage Corporation merged with and into BA Mortgage, L.L.C. Finally, in April 2003, BA Mortgage, L.L.C., merged into BOA.

{¶ 10} After filing the notices, BOA filed a motion for summary judgment in February 2010, supported by the affidavit of David Perez. According to his affidavit, Perez is the assistant vice president of BAC Home Loans Servicing LP (“BAC”). BAC is identified as the servicing agent for BOA. The actual relationship between BOA and BAC is not discussed.

{¶ 11} Perez’s affidavit indicates that he has custody of the accounts of “said company,” but it is unclear from the affidavit which company he is referring to, because both BAC and BOA are mentioned in the immediately preceding part of the sentence. The note and mortgage to Society Mortgage are attached to the affidavit as Exhibits A and B, respectively. Perez indicates that these copies are true and accurate reproductions of the originals as they exist in BOA’s files, but he does not explain how he knows this is so, given that he is an employee of another company. Perez further indicates that BOA is the holder of the note and mortgage, without any indication of why this is so; in other words, his factual basis for averring this legal conclusion is- missing. Finally, Perez identifies a copy of the loan history, which is attached as Exhibit C. Perez’s affidavit was signed and notarized in Dallas County, Texas.

{¶ 12} BOA submitted an additional document entitled “Affidavit of Status of Account and Military Affidavit.” This affidavit is signed by Robert Rybarczyk, who is identified as an assistant vice president of an entity called “Bank of America (NY) as servicing agent for Bank of America, NA.” Rybarczyk states that he has custody and personal knowledge of the accounts of “said company” and that the accounts of the Millers are in default in accordance with the mortgage and note attached to the complaint. Contrary to Rybarczyk’s affidavit, the Millers’ note was not attached to the complaint—it was filed a month later. Rybarczyk’s affidavit was signed and notarized in Erie County, New York.

[312]*312{¶ 13} These conflicting affidavits, signed and notarized in different states and for different companies, raise questions about the identity of the entity that is the actual servicing agent for BOA, about the nature of the relationship between BOA and these entities, and about who actually has possession of the note.

{¶ 14} In response to the summary-judgment motion, the Millers submitted an affidavit from Stephen Miller, who denied that BOA is the actual holder of the note and debt. Miller stated that he believed that the Federal National Mortgage Association (“FNMA”) is the actual holder of the note and obligation.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 Ohio 1403, 956 N.E.2d 319, 194 Ohio App. 3d 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-america-na-v-miller-ohioctapp-2011.