BANK OF NEW YORK MELLON v. RHIEL, Trustee.

2018 Ohio 5087, 122 N.E.3d 1219, 155 Ohio St. 3d 558
CourtOhio Supreme Court
DecidedDecember 20, 2018
Docket2017-0870
StatusPublished
Cited by18 cases

This text of 2018 Ohio 5087 (BANK OF NEW YORK MELLON v. RHIEL, Trustee.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BANK OF NEW YORK MELLON v. RHIEL, Trustee., 2018 Ohio 5087, 122 N.E.3d 1219, 155 Ohio St. 3d 558 (Ohio 2018).

Opinions

DeGenaro, J.

*558{¶ 1} This matter is before the court on the certification of two state-law questions from the Bankruptcy Appellate Panel for the United States Court of Appeals. The panel asks whether a mortgage is invalid and unenforceable against the interest of a person who has initialed, signed, and acknowledged the mortgage agreement but who is not identified by name in the body of the agreement.

{¶ 2} For the reasons that follow, we hold that the failure to identify a signatory by name in the body of a mortgage agreement does not render the agreement unenforceable as a matter of law against that signatory. It is possible for a person who is not identified in the body of a mortgage but who has signed and initialed the mortgage to be a mortgagor of his or her interest.

BACKGROUND

{¶ 3} The note and mortgage that give rise to the certified questions are not before us. However, the following factual and procedural history is gleaned from the order of certification from the Bankruptcy Appellate Panel for the United States Sixth Circuit Court of Appeals, the memorandum opinion and order from the United States Bankruptcy Court, Southern District of Ohio, Eastern Division, and the facts either agreed upon or not disputed by the parties in their briefs.

{¶ 4} In 2014, Vodrick and Marcy Perry filed bankruptcy under Chapter 7 of the *1222Bankruptcy Code. Respondent, Susan L. Rhiel, is the trustee of the bankruptcy estate. A mortgage on a particular piece of residential real property in the bankruptcy estate became the subject of contention. Petitioner, Bank of New *559York Mellon, is the holder of a promissory note and mortgage encumbering the property. The trustee sought a declaration that the mortgage did not encumber Marcy's interest in the property.

The mortgage and related instruments

{¶ 5} The general warranty deed to the property was issued to both Marcy and Vodrick with joint survivorship rights. The note held by the bank is signed and initialed by Vodrick only. Both Marcy and Vodrick signed the mortgage, and they acknowledged signing the mortgage before a notary public.

{¶ 6} The first section of the mortgage defines the "Borrower" as Vodrick. It then defines "Note" as the promissory note signed by the borrower and obligating the borrower for the debt. The mortgage provides that in order to secure repayment on the note, the borrower is mortgaging the property described later in the mortgage. The description of the property does not limit the mortgage to Vodrick's partial interest.

{¶ 7} The mortgage later contains terms that apply to a borrower who did not sign the promissory note. No name is used to identify the borrower in this paragraph:

"[A]ny Borrower who co-signs this Security Instrument but does not execute the Note (a 'co-signer'): (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without the co-signer's consent."

In re Perry , 558 B.R. 204, 207 (Bankr.S.D.Ohio 2016), quoting the mortgage.

{¶ 8} Toward the end of the mortgage, Vodrick's name is typed next to the designation of "Borrower," and Marcy's name is handwritten next to the designation of "Borrower." Marcy and Vodrick each signed the mortgage above their respective name and designation. Marcy and Vodrick also each initialed every page of the mortgage agreement, including a page containing a legal description of the property.

The bankruptcy proceedings

{¶ 9} The central issue before the bankruptcy court was whether Marcy could be bound by the mortgage as a borrower-cosigner despite her name's not being included in the definition of "Borrower" on the first page of the mortgage. The *560bankruptcy court denied the trustee's and the bank's competing motions for summary judgment, holding that the mortgage language was ambiguous and parol evidence could therefore be considered. After the matter proceeded to trial, the court concluded, based on extrinsic evidence and the instrument itself, that Marcy had executed the mortgage with the intent to pledge her interest in the property.

{¶ 10} On appeal of the judgment in favor of the bank, the bankruptcy appellate panel recognized that whether a person who signs a mortgage has encumbered his or her interest in the property if the person was not identified in the body of the mortgage has repeatedly arisen in Ohio bankruptcy cases. The panel also noted that it has been constrained in predicting how this court might rule on the matter.

*1223The panel observed that the trustee's position was supported by prior bankruptcy decisions, one of which determined that "a mortgage, under Ohio law, does not encumber a spouse's one-half interest in real property if the mortgage, although signed and acknowledged by the spouse, does not otherwise reference the spouse," In re Wallace , Bankr.S.D.Ohio No. 05-24918, 2007 WL 6510864, *3 (Nov. 15, 2007). The bank's position was supported by a competing line of decisions from Ohio courts of appeals, one of which held that a spouse's signing a mortgage as a borrower mortgages his or her interest in a property even if the body of the mortgage does not refer to the spouse by name, SFJV 2005, L.L.C. v. Ream , 187 Ohio App.3d 715, 2010-Ohio-1615, 933 N.E.2d 819 (2d Dist.).

Statement of certified questions

{¶ 11} Given the foregoing conflict and the lack of controlling precedent from this court regarding Ohio mortgages that do not name one of the signatories in the body of the document, the panel sua sponte certified the following questions of law in accordance with S.Ct.Prac.R. 9.01(A):

1. [Is] an individual who is not identified in the body of a mortgage, but who signs and initials the mortgage, * * * a mortgagor of his or her interest?
2.

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Cite This Page — Counsel Stack

Bluebook (online)
2018 Ohio 5087, 122 N.E.3d 1219, 155 Ohio St. 3d 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-new-york-mellon-v-rhiel-trustee-ohio-2018.