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OHIO APPEALS COURT REVERSAL “Breach of Contract, Fraud, and Misrepresentation Arising From a Forbearance Agreement” CitiMortgage, Inc. v. Slack

OHIO APPEALS COURT REVERSAL “Breach of Contract, Fraud, and Misrepresentation Arising From a Forbearance Agreement” CitiMortgage, Inc. v. Slack


CITIMORTGAGE, INC.

vs.

WILLIAM J. SLACK, ET AL.

JUDGMENT:
REVERSED AND REMANDED

Civil Appeal from the
Cuyahoga County Court of Common Pleas

Case No. CV-661863

BEFORE: Gallagher, J., Celebrezze, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: February 10, 2011

excerpts:

{¶ 2} Defendant-appellee CitiMortgage, Inc., filed a foreclosure action
on June 10, 2008, alleging appellants were in default on a note and mortgage,
which was secured by appellants’ home. Appellants filed a counterclaim
raising claims for breach of contract, fraud in the inducement, and intentional
or negligent misrepresentation. The counterclaim arose from a forbearance
agreement entered between the parties in May 2007.

{¶ 3} CitiMortgage was ordered to file evidence that it had standing to
file the case in accordance with the ruling in Wells Fargo Bank, N.A. v.
Jordan, Cuyahoga App. No. 91675, 2009-Ohio-1092. In Jordan, this court
held that a party lacks standing to bring a foreclosure action if the party
cannot prove that it owned the note and mortgage on the date the complaint
was filed. Id.

{¶ 4} CitiMortgage opted to voluntarily dismiss its claims without
prejudice pursuant to Civ.R. 41(A). Thereafter, the trial court ordered
appellants to file a notice of intent to proceed on their counterclaim and to
demonstrate their standing to pursue their claims. Appellants eventually
indicated their intent to proceed, asserted standing to pursue their
counterclaim, and stated that their counterclaim was based solely upon facts
and circumstances arising from the parties’ forbearance agreement.

<SNIP>

{¶ 12} In this case, appellants’ counterclaim did not arise from the note
or mortgage. Rather, appellants asserted claims of breach of contract, fraud,
and misrepresentation arising from a forbearance agreement they entered
with CitiMortgage in an earlier foreclosure action, CitiMortgage, Inc. v. Slack,
Cuyahoga County Common Pleas Court Case No. CV-606916. The
forbearance agreement was entered in May 2007. The record does not reflect
any basis for concluding the trial court could not adjudicate appellants’
counterclaim independently from the complaint. Upon our review, we find
that the trial court had jurisdiction of the parties and of the controversy and
erred by dismissing the counterclaim.4

{¶ 13} Appellants’ sole assignment of error is sustained.
Judgment reversed; case remanded.

Continue to opinion below…

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OHIO APPEALS COURT REVERSED “AFFIDAVIT = NO PROOF YOU OWN NOTE” DEUTSCHE BANK v. TRIPLETT

OHIO APPEALS COURT REVERSED “AFFIDAVIT = NO PROOF YOU OWN NOTE” DEUTSCHE BANK v. TRIPLETT


Deutsche Bank National Trust Co. Plaintiff-Appellee,
v.
Chanel Triplett, et al., Defendants-Appellants.

No. 94924.

Court of Appeals of Ohio, Eighth District, Cuyahoga County. RELEASED AND JOURNALIZED: February 3, 2011.

Appellant
Chanel Triplett, Pro Se, 2982 East 59th Street, Cleveland, Ohio 44127
Attorneys for Appellees
Mathew P. Curry, Manley DEAS Kochalski, LLC, P. O. Box 165028, Columbus, Ohio 43216-5028, Ted A. Humbert, Jason A. Whitacre, Kathryn M. Eyster, The Law Offices of John D. Clunk, Co., L.P.A., 4500 Courthouse Blvd., Suite 400, Stow, Ohio 44224, Nova Star Mortgage, Inc., 6200 Oak Tree Blvd., Third Floor, Independence, Ohio 44131, Stewart Lender Services, 9700 Bissonet Suite 1500, Mail Stop 27, Houston, Texas 77036,
——
Before: Blackmon, P.J., Sweeney, J., and Gallagher, J.
excerpt:

{¶ 7} Deutsche Bank also attached an affidavit from Renee Hertzler, an officer of Countrywide Home Loans, its loan servicing agent. Hertzler averred that Triplett’s loan account was under her supervision and that there was a principal balance due in the amount of $80,504.77 with interest thereon at 9.1% per year from August 1, 2007. Hertzler also averred that Triplett’s loan remained in default.
<SNIP>

{¶ 17} In U.S. Bank Natl. Assn. v. Duvall, Cuyahoga App. No. 94714, 2010-Ohio-6478, this Court’s recent decision affirming the trial court’s dismissal of a foreclosure complaint involving facts substantially similar to the present case, we rejected an affidavit that stated the plaintiff acquired the note and mortgage prior to the filing of the complaint. Likewise, Deutsche Bank’s affidavit of ownership, sworn out more than a year after the foreclosure complaint was filed, is insufficient to vest the bank with standing to file and maintain the action. Thus, if Deutsche Bank had offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law. Jordan, ¶¶ 22-23. Accordingly, we reverse the trial court’s decision because Deutsche Bank lacks standing.

Judgment reversed.

Continue to order below…

[ipaper docId=48247103 access_key=key-29sa497rygd5a5lbevqy height=600 width=600 /]

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