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PHH MORTGAGE v. ALBUS | Ohio Appeals Court Reverses “Tracy Johnson Affidavit, Illegible Loan History Statment, No Certificate of Service”

PHH MORTGAGE v. ALBUS | Ohio Appeals Court Reverses “Tracy Johnson Affidavit, Illegible Loan History Statment, No Certificate of Service”


STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT

PHH MORTGAGE CORPORATION fka
CENTURY 21 MORTGAGE

vs.

MARIA S. ALBUS, et al

EXCERPT:

{6} Appellee also filed the affidavit of Tracy Johnson, the loan supervisor assigned to Appellant’s account. According to the affidavit, Appellant defaulted on the note and Appellee exercised the acceleration option contained in the note. (Johnson Aff., ¶4-5.) Johnson avers that an unpaid principal balance exists in the amount of $56,874.74, with interest to accrue at the rate of 8.308% per annum from November 1, 2006, “plus sums advanced by Plaintiff pursuant to the terms of the Mortgage Deed for real estate taxes, hazard insurance premiums and property protection* * *.” (Johnson Aff., ¶5.) An illegible loan history statement is attached to the affidavit, as well as a customer activity statement and a loan activity statement. No certificate of service is included in the record with the document.

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OHIO APPEALS COURT GIVE HSBC A BEAT DOWN! “AG CORDRAY AMICUS”, “MERS ISSUE”, “AFFIDAVIT ISSUES”, “UNATTACHED ALLONGE TO NOTE”: HSBC Bank USA v. Thompson

OHIO APPEALS COURT GIVE HSBC A BEAT DOWN! “AG CORDRAY AMICUS”, “MERS ISSUE”, “AFFIDAVIT ISSUES”, “UNATTACHED ALLONGE TO NOTE”: HSBC Bank USA v. Thompson


IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

HSBC BANK USA, N.A., as Indenture :
Trustee for the Registered Noteholders :
of Renaissance Home Equity Loan :
Trust 2007-1 :
:
v.
:
JAMIE W. THOMPSON, et al.

EXCERPTS:

{¶ 67} In contrast to Watson, no evidence was presented in the case before us to indicate that the allonges were ever attached or affixed to the promissory note. Instead, the allonges have been presented as separate, loose sheets of paper, with no explanation as to how they may have been attached. Compare In re Weisband, (Bkrtcy. D. Ariz., 2010), 427 B.R. 13, 19 (concluding that GMAC was not a “holder” and did not have ability to enforce a note, where GMAC failed to demonstrate that an allonge endorsement to GMAC was affixed to a note. The bankruptcy court noted that the endorsement in question “is on a separate sheet of paper; there was no evidence that it was stapled or otherwise attached to the rest of the Note.”)

{¶ 86} We need not decide which approach is correct, because the alleged assignment of mortgage is attached to Neil’s rejected affidavits. Since the trial court’s disregard of the affidavits was not an abuse of discretion, there is currently no evidence of a mortgage “assignment” to consider. Moreover, we would reject HSBC’s position even if we considered the alleged assignment, because HSBC failed to establish that it was the holder of the note. Therefore, no “equitable assignment” of the mortgage would have arisen. All that HSBC might have established is that the mortgage was assigned to it after the action was filed. However, as we noted, the matters pertaining to that fact were submitted with an
affidavit that the trial court rejected, within its discretion.

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