Nationstar Mortg. v. Anderson

Docket NumberC. A. 29716
Decision Date08 September 2023
PartiesNATIONSTAR MORTGAGE LLC, DBA MR. COOPER Appellee v. ANDREW S. ANDERSON, et al. Appellant
CourtOhio Court of Appeals

Civil Appeal from Common Pleas Court Trial Court Case No. 2020 CV 01004

JOHN A. FISCHER, Attorney for Appellant

JAMES W. SANDY, Attorney for Appellee

OPINION

LEWIS J.

{¶ 1} Defendant-Appellant Andrew S. Anderson ("Anderson") appeals from a judgment of foreclosure entered by the Montgomery County Common Pleas Court. For the reasons that follow, we will affirm the judgment of the trial court.

I. Facts and Course of Proceedings {¶ 2} On November 24, 1999, Anderson and Loraine K Anderson ("Lorraine"), husband and wife,[1] signed an open-end, 20-year mortgage agreement with Security National Mortgage Banc, LLC, relating to property located at 2143 Ottello Avenue in Dayton, Ohio. Pursuant to the mortgage and accompanying note, the Andersons were obligated to pay the principal sum of $44,500 in monthly installments with any remaining debt becoming due in full on December 1, 2019.

{¶ 3} On February 25, 2020, Plaintiff-Appellee Nationstar Mortgage LLC, dba Mr. Cooper ("Nationstar"), commenced an action for foreclosure against the Andersons in the Common Pleas Court of Montgomery County. According to the complaint, Nationstar was the current mortgagee of the November 24, 1999 mortgage pursuant to a series of assignments, and the Andersons had defaulted in payment on the mortgage. Attached to the complaint were copies of the original note and mortgage, the assignments of the mortgage, and a preliminary judicial report. Nationstar requested judgment in the sum of $7,390.59, plus interest at the rate of 7.875% per annum from February 1, 2018. Nationstar also requested that the subject property at Ottello Avenue be appraised, advertised, and sold according to law. The Andersons filed an answer denying the allegations in the complaint.

{¶ 4} In September 2020, the trial court issued an order staying the proceedings because of the foreclosure moratorium on federally-backed mortgage loans. The stay was lifted a year later. On October 25, 2021, Nationstar filed an amended complaint, adding unknown spouses of the Andersons who had divorced. The Andersons filed separate answers to the amended complaint. In her answer, Loraine explained that she and Anderson had divorced in 2013, and the divorce decree made Anderson solely responsible for the mortgage on the Ottello property.

{¶ 5} On December 27, 2021, Nationstar filed a motion for summary judgment on its amended complaint. Anderson filed a memorandum in opposition to the motion, but Loraine did not file any opposition to the motion. On January 9, 2023, the trial court granted Nationstar's motion for summary judgment and issued a final judgment entry and decree of foreclosure. The court awarded $7,390.59, plus interest thereon at the rate of 7.875% per annum from February 1, 2018. The trial court stated that unless this sum and the costs of the action were fully paid within three days of the judgment entry, the equity of redemption and dower of all the defendants in and to the premises shall be foreclosed and said premises sold.

{¶ 6} Anderson filed a timely notice of appeal from the judgment of foreclosure.

II. The Trial Court Did Not Err in Granting Summary Judgment to Nationstar

{¶ 7} Anderson's sole assignment of error states:

THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT OF FORECLOSURE.

{¶ 8} Anderson contends that the trial court erred by granting summary judgment to Nationstar for the following reasons: (1) Nationstar lacked standing to bring the suit in foreclosure, because it failed to show an unbroken chain of title from the original mortgagee to the present; (2) Nationstar failed to prove the amount due on the loan, because it did not show all the payments made since the original date of the loan; and (3) Nationstar failed to properly support its motion for summary judgment with specific citations to the documents attached to its motion for summary judgment.

{¶ 9} Nationstar disagrees with Anderson's contentions. According to Nationstar, not only was it an assignee of the mortgage at the time the foreclosure action was filed, but it also was a holder of the note on the mortgage. Appellee's Brief, p. 8. Nationstar states that it showed a complete, unbroken chain of assignments from 1999 to the present. Further, Nationstar argues that Anderson lacks standing to challenge the validity of the assignments of the mortgage. Id. Regarding the amount due on the loan, Nationstar contends that a plaintiff is not required to provide a complete payment history to receive summary judgment in a foreclosure action. Id. Rather, an affidavit stating a loan is in default is sufficient, especially "where a borrower does not present controverting evidence and does not dispute their failure to pay[.]" Id. at 10. Finally, Nationstar states that it properly supported its motion for summary judgment, and the trial court did not have to "rummage through" the record to find support for the motion. Id. at 11.

{¶ 10} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the nonmoving party. On a motion for summary judgment, the moving party carries an initial burden of identifying specific facts in the record that demonstrate its entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, the nonmoving party has the reciprocal burden to point to evidence of specific facts in the record demonstrating the existence of a genuine issue of material fact for trial. Id. at 293. Summary judgment is appropriate if the nonmoving party fails to meet this burden. Id. "We review decisions granting summary judgment de novo, which means that we apply the same standards as the trial court." (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).

{¶ 11} When a mortgagor defaults, a mortgagee "may elect among separate and independent remedies to collect the debt secured by a mortgage." (Citations omitted.) Deutsche Bank Natl. Trust Co. v. Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d 1243, ¶ 21. These remedies include: (1) suits seeking personal judgments against mortgagors to recover amounts due on promissory notes, without resorting to the mortgaged property; (2) actions to enforce mortgages, which are for the mortgagee's excusive benefit and for those claiming under the mortgagee; and (3) "based on the property interest created by the mortgagor's default on the mortgage, the mortgagee may bring a foreclosure action to cut off the mortgagor's right of redemption, determine the existence and extent of the mortgage lien, and have the mortgaged property sold for its satisfaction." (Citations omitted.) Id. at ¶ 22-24.

{¶ 12} The case before us involves the third remedy, which is a foreclosure action asking that the property be sold. However, a" 'foreclosure proceeding is the enforcement of a debt obligation,' * * * and the debt is established by the note." Id. at ¶ 27, quoting Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 17. In Holden, the court concluded that a bank could proceed in foreclosure against a debtor who had been discharged from any obligation on a promissory note in bankruptcy proceedings, so long as the bank could prove that "it is the party entitled to enforce the note-regardless of whether it can obtain a personal judgment on it against the [obligors]." Holden at ¶ 27.

{¶ 13} " To properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (1) the movant is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the movant is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due.'" (Citations omitted.) JP Morgan Chase Bank, N.A. v. Massey, 2d Dist. Montgomery No. 25459, 2013-Ohio-5620, ¶ 20.

{¶ 14} Anderson first takes issue with Nationstar's proof that it is the current mortgagee. According to Anderson, Nationstar failed to establish an unbroken chain of title between it and the original mortgagee. Further, Anderson contends that this failure means that Nationstar lacked standing to pursue the foreclosure action.

{¶ 15} A party commencing litigation must have standing to sue to invoke the jurisdiction of the common pleas court. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 38. "To have standing, a plaintiff must have a personal stake in the outcome of the controversy and have suffered some concrete injury that is capable of resolution by the court." (Citations omitted.) Bank of Am., N.A. v. Adams, 8th Dist. Cuyahoga No. 101056, 2015-Ohio-675, ¶ 7.

{¶ 16} Attached to Nationstar's complaint and to its motion for summary judgment are copies of the assignments of the November 24, 1999 mortgage. First, the mortgage was assigned by Security National Mortgage Banc, LLC to Flagstar Bank, FSB, on November 24, 1999. Then, Flagstar Bank, FSB assigned the mortgage to Fannie Mae, or Federal National Mortgage Association, in care of Chase...

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