Fed. Natl. Mtge. Assn. v. McFerren , 2018 Ohio 5319 ( 2018 )

[Cite as Fed. Natl. Mtge. Assn. v. McFerren, 2018-Ohio-5319.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
FEDERAL NATIONAL MORTGAGE C.A. No. 28814
ASSOCIATION
Appellee
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
GARRICK P. MCFERREN, et al. COUNTY OF SUMMIT, OHIO
CASE No. CV 2015 07 3622
Appellant
DECISION AND JOURNAL ENTRY
Dated: December 31, 2018
CALLAHAN, Judge.
{¶1} Appellant, Garrick McFerren, appeals from the judgment of the Summit County
Common Pleas Court in favor of Appellee, Federal National Mortgage Association (“Fannie
Mae”). For the reasons set forth below, this Court reverses and remands.
I.
{¶2} Fannie Mae filed a complaint to foreclose on Mr. McFerren’s residential
mortgage and to obtain a personal judgment against him on the note relative to the property
located at 3209 Deborah Court in Uniontown.1 None of the defendants filed an answer. Fannie
Mae moved for and was granted default judgment and a decree of foreclosure. A week later, Mr.
1
This is the second foreclosure action filed against Mr. McFerren as to this note and mortgage.
See BAC Home Loans Servicing, LP v. McFerren, 9th Dist. Summit No. 26384, 2013-Ohio-
3228, ¶ 2-3. (“McFerren I”). The previous foreclosure action involved a different financial
entity. Id. In the appeal of that foreclosure action, this Court reversed the trial court’s grant of
summary judgment because the record did not demonstrate that the bank had standing to initiate
the foreclosure action. Id. at ¶ 5.
2
McFerren filed a motion to vacate the default judgment and leave to file an answer instanter,
both of which were granted. Mr. McFerren’s answer contained various affirmative defenses,
including, but not limited to, lack of standing, failure to satisfy conditions precedent, and
payment of the note.
{¶3} After unsuccessful mediation attempts, Fannie Mae moved for summary judgment
on the complaint. Mr. McFerren filed two identical response briefs, 3 days apart and each by
different counsel. Both of Mr. McFerren’s response briefs included an affidavit by him that was
not executed or notarized. Mr. McFerren opposed the summary judgment motion by arguing that
Fannie Mae lacked standing to bring the foreclosure action, the affidavit submitted by Fannie
Mae was insufficient to establish standing, and Fannie Mae failed to establish damages. Fannie
Mae filed a reply brief.
{¶4} Upon review of the briefs and the evidence, the trial court reserved ruling on the
motion for summary judgment and ordered Fannie Mae to file a supplemental affidavit
establishing that it had standing. In accordance with the trial court’s order, Fannie Mae filed a
supplemental affidavit with attachments regarding the issue of standing. Despite being granted
leave, Mr. McFerren did not file a supplemental response brief or any evidence opposing Fannie
Mae’s additional evidence. After consideration of Fannie Mae’s additional evidence, the trial
court granted Fannie Mae’s motion for summary judgment.
{¶5} Mr. McFerren timely appeals from this judgment entry, asserting three
assignments of error. Of Mr. McFerren’s three assignments of error, the second is dispositive, so
this Court addresses it first.
3
II.
ASSIGNMENT OF ERROR NO. 2
REVIEWING [FANNIE MAE’S] MOTION FOR SUMMARY JUDGMENT DE
NOVO, THE RECORD IS CLEAR AND CONVINCING THAT THE TRIAL
COURT ERRED TO THE PREJUDICE OF [MR. MCFERREN] BY
GRANTING [FANNIE MAE’S] MOTION FOR SUMMARY JUDGMENT IN
FAVOR OF [FANNIE MAE].
{¶6} Mr. McFerren argues that the trial court erred in granting summary judgment to
Fannie Mae because it did not establish standing. This Court agrees.
{¶7} Appellate courts consider an appeal from summary judgment under a de novo
standard of review, using the same standard that the trial court applies. See Bonacorsi v.
Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24, citing Doe v. Shaffer,
90 Ohio St.3d 388, 390 (2000). Accordingly, this Court stands in the shoes of the trial court and
conducts an independent review of the record.
{¶8} Summary judgment is proper under Civ.R. 56(C) 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 only reach one conclusion, and that conclusion is adverse to the
nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶9} Summary judgment consists of a burden-shifting framework. The movant bears
the initial burden of demonstrating the absence of genuine issues of material fact concerning the
essential elements of the nonmoving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292-293
(1996). Specifically, the moving party must support the motion by pointing to some evidence in
the record of the type listed in Civ.R. 56(C). Id. Once the moving party satisfies this burden, the
nonmoving party has a “reciprocal burden” to “‘set forth specific facts showing that there is a
4
genuine issue for trial.’” Id. at 293, quoting Civ.R. 56(E). The nonmoving party “‘may not rest
upon the mere allegations or denials of his pleadings,’” but instead must submit evidence as
outlined in Civ.R. 56(C). Id., quoting Civ.R. 56(E).
{¶10} The plaintiff moving for summary judgment in a foreclosure action 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.
(Internal quotations and citations omitted in original.) The Bank of New York Mellon v. Bridge,
9th Dist. Summit No. 28461, 2017-Ohio-7686, ¶ 10, quoting Bank of Am., N.A. v. Edwards, 9th
Dist. Lorain Nos. 15CA010848, 15CA010851, 2017-Ohio-4343, ¶ 10.
{¶11} A plaintiff in a foreclosure action must have standing at the time it files the
complaint in order to invoke the jurisdiction of the court over the foreclosure action. See Fed.
Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 41. See also
Bank of Am. N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, paragraph three of the
syllabus, ¶ 22 (standing addresses a court’s “jurisdiction over a particular case, [and] not subject-
matter jurisdiction”). “To prove standing in a foreclosure action, a plaintiff must hold both the
note and the mortgage prior to filing the complaint.” Bank of Am., N.A. v. McCormick, 9th Dist.
Summit No. 26888, 2014-Ohio-1393, ¶ 8. See also Deutsche Bank Natl. Trust Co. v. Holden,
147 Ohio St.3d 85, 2016-Ohio-4603, ¶ 33.
{¶12} As a preliminary matter, Fannie Mae argues that Mr. McFerren’s assignments of
error should be overruled due to his failure to comply with App.R. 16(A)(7) and Loc.R. 7(F).
Fannie Mae contends that Mr. McFerren’s counsel used “recycled, boilerplate assertions” in his
appellant brief and thereby fails to conform to the appellate rules. While this Court will apply
5
the appellate rules as necessary to the deficiencies in Mr. McFerren’s appellate brief, we will do
so in conjunction with our required de novo review of whether Fannie Mae met its initial
Dresher burden in this matter.
{¶13} Mr. McFerren presented various challenges to the affidavit submitted by Fannie
Mae in support of its summary judgment motion. First, Mr. McFerren contended that the
affidavit was deficient because the affiant was an employee of Seterus, Inc., the subservicer for
Fannie Mae, and not an employee of Fannie Mae. Mr. McFerren, however, provided no legal
authority to support this argument and it is not this Court’s duty “to search for authority to
support [Mr. McFerren’s] argument as to an alleged error.” Harris v. Nome, 9th Dist. Summit
No. 21071, 2002-Ohio-6994, ¶ 15, citing Kremer v. Cox, 114 Ohio App.3d 41, 60 (9th
Dist.1996). See also Cardone v. Cardone, 9th Dist. Summit Nos. 18349, 18673, 1998 Ohio App.
LEXIS 2028, *22 (May 6, 1998). Thus, pursuant to App.R. 16(A)(7) and Loc.R. 7(B)(7), this
Court declines to address this argument.
{¶14} Mr. McFerren also challenged the sufficiency of Fannie Mae’s affidavit because it
was not based upon personal knowledge. As to the issue of personal knowledge in affidavits in
support of a summary judgment motion in foreclosure cases, this Court has held:
[A]ffidavits submitted in support of or in opposition to motions for summary
judgment shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit. Generally, a mere
assertion of personal knowledge satisfies the personal knowledge requirement of
Civ.R. 56(E) if the nature of the facts in the affidavit combined with the identity
of the affiant creates a reasonable inference that the affiant has personal
knowledge of the facts in the affidavit. If particular averments contained in an
affidavit suggest that it is unlikely that the affiant has personal knowledge of
those facts, [however,] then * * * something more than a conclusory averment
that the affiant has knowledge of the facts [is] required. This Court cannot infer
personal knowledge from the averment of personal knowledge alone.
6
(Alterations in the original. Internal citations and quotations omitted.) Bank of New York Mellon
v. Villalba, 9th Dist. Summit No. 26709, 2014-Ohio-4351, ¶ 10. Further, this Court has
indicated a preference for “affidavits identify[ing] with greater specificity the affiant’s title, job
responsibilities, and authority giving rise to her familiarity with the relevant records[.]” See U.S.
Bank, Natl. Assn. v. Greenless, 9th Dist. Lorain No. 14CA010618, 2015-Ohio-356, ¶ 12.
{¶15} Contrary to Mr. McFerren’s position, the affiant did not “[s]imply” state that she
was authorized to make the affidavit and that the affidavit was based on her personal knowledge.
Instead, the affiant 1) indicated that her job position with Seterus, Inc. was as a foreclosure
specialist and that Seterus, Inc. was the subservicer for Fannie Mae, 2) described the scope of her
job responsibilities, and 3) summarized her familiarity and examination of the business records
relative to Mr. McFerren’s loan. Additionally, the affiant identified the specific business records
that she reviewed and relied upon to support her affidavit. Based upon the foregoing, there was a
reasonable inference that the affiant had personal knowledge of the facts in the affidavit.
{¶16} Mr. McFerren argued that the affidavit and the business records were inadmissible
hearsay. “[T]he business records exception to the hearsay rule, * * * provides that records of
regularly conducted business activity are an admissible form of hearsay.” Christiana Trust v.
Barth, 9th Dist. Lorain No. 16CA010959, 2017-Ohio-6924, ¶ 12, citing Evid.R. 803(6).
To qualify for admission under Evid.R. 803(6), a business record must manifest
four essential elements: (i) the record must be one regularly recorded in a
regularly conducted activity; (ii) it must have been entered by a person with
knowledge of the act, event or condition; (iii) it must have been recorded at or
near the time of the transaction; and (iv) a foundation must be laid by the
custodian of the record or by some other qualified witness.
(Internal quotations and citations omitted in original.) PNC Bank, Natl. Assn. v. West, 9th Dist.
Wayne No. 12CA0061, 2014-Ohio-161, ¶ 12, quoting Green Tree Servicing, L.L.C. v. Roberts,
12th Dist. Butler No. CA2013-03-039, 2013-Ohio-5362, ¶ 29.
7
{¶17} In order to be admissible under this hearsay exception, the business records must
be authenticated by “evidence sufficient to support a finding that the matter in question is what
the proponent claims it to be[.]” Barth at ¶ 13, citing Evid.R. 901(A).
A witness authenticating a business record must be familiar with the operation of
the business and with the circumstances of the preparation, maintenance, and
retrieval of the record in order to reasonably testify on the basis of this knowledge
that the record is what it purports to be, and was made in the ordinary course of
business. Evid.R. 803(6) does not require personal knowledge of the exact
circumstances of the preparation and production of the document or of the
transaction giving rise to the record.
(Internal quotations and citation omitted.) Barth at ¶ 13.
{¶18} As addressed above, the affiant set forth her job title, her job responsibilities at
Seterus, Inc., and how her job duties required her to examine and be familiar with the business
records related to servicing mortgage loans. The affiant averred that the business records were
kept in the course of Seterus, Inc.’s regularly conducted business activities and created by
Seterus, Inc. as a regular business practice. Further, these business records were made at or near
the time of the occurrence of the matters being recorded by persons with knowledge of the
information in the business records. The affiant attested that she examined the business records.
The affidavit was made based on the affiant’s review of those business records and her
knowledge of how the records are created and made.
{¶19} In light of the foregoing, the affidavit reflected that the witness was sufficiently
familiar with the business operations and with the circumstances of the record’s preparation and
maintenance. Further, the affiant set forth the foundational requirements of Evid.R. 803(6).
Accordingly, the affidavit and business records were not hearsay, and instead proper evidence in
support of Fannie Mae’s summary judgment motion.
8
{¶20} Mr. McFerren asserted various reasons as to why Fannie Mae’s affidavit and
documents did not establish it as the holder of the note and mortgage. In his first proposition,
Mr. McFerren claimed there was no evidence of “how or when” Fannie Mae obtained the note.
In response to this argument, the trial court ordered Fannie Mae to submit additional evidence in
support of the date and method Fannie Mae obtained the note.2 Mr. McFerren did not object to
the trial court’s order for additional evidence. Fannie Mae filed a supplemental affidavit with
attachments. Despite being granted leave, Mr. McFerren did not respond to Fannie Mae’s
supplemental evidence.
{¶21} “When a note is indorsed in blank, the holder is the person in possession of the
note.” Bridge, 2017-Ohio-7686, at ¶ 20; see also R.C. 1301.201(B)(21)(a). In situations where
the holder’s agent is in physical possession of the note, the holder may still enforce the note
based upon constructive possession of the note. Bridge at ¶ 20. However, a note indorsed in
blank does not, on its face, establish who is in possession of the note and when that possession
transpired. See Bank of Am., N.A. v. Loya, 9th Dist. Summit No. 26973, 2014-Ohio-2750, ¶ 14.
Thus, a supporting affidavit must attest to how and when the entity became the holder of the note
and generally the affiant must produce supporting business records, other than the note, to
establish possession. See id; McFerren, 2013-Ohio-3228, at ¶ 9.
{¶22} In this case, Mr. McFerren executed a note with Quicken Loans, Inc. On page
three of the note there is a stamp with an indorsement from Quicken Loans, Inc. payable to
Countrywide Bank, F.S.B. The supplemental affidavit averred that on the back of page three of
the note, there was a blank indorsement from Countrywide Bank, F.S.B. The supplemental
2
Because Mr. McFerren did not assign as error the trial court’s order requesting additional
summary judgment evidence, this Court passes on the propriety of the trial court providing
Fannie Mae a second opportunity to meet its Dresher burden in its initial summary judgment
motion.
9
affidavit averred that Fannie Mae purchased the note on March 1, 2008. In support of this
statement, attached to the supplemental affidavit was a printout from Seterus, Inc., the
subservicer for Fannie Mae, reflecting the investor purchase date of March 1, 2008 for Mr.
McFerren’s loan. The supplemental evidence established Fannie Mae as the holder of the note
via the blank indorsement.
{¶23} Additionally, the supplemental affidavit averred and attached a computer printout
from Seterus, Inc.’s acquisition record that Fannie Mae sent the note to Seterus, Inc. on April 1,
2015, and the foreclosure complaint was filed on July 20, 2015. The affidavit further stated that
Fannie Mae had possession of the note prior to filing the complaint and continued to maintain
possession of the note through its subservicer, Seterus, Inc. The supplemental evidence also
established Fannie Mae as having constructive possession of the note while its agent, Seterus,
Inc., was in physical possession of the note.
{¶24} Mr. McFerren also challenged Fannie Mae’s averments that it possessed the note
by arguing that there was no evidence that the allonge, which contained the blank indorsement,
was attached or affixed to the note. The trial court also ordered Fannie Mae to submit
supplemental evidence as to this issue.3
{¶25} Ohio law requires indorsements to be on an instrument or in papers affixed to the
instrument. See R.C. 1303.24(A)(1) and (2). “An allonge is ‘[a] slip of paper sometimes attached
to a negotiable instrument for the purpose of receiving further indorsements when the original
paper is filled with indorsements.’” Deutsche Bank Natl. Trust Co. v. Traxler, 9th Dist. Lorain
3
As stated earlier, the propriety of the trial court requesting additional summary judgment
evidence has not been raised in this appeal. We caution that this decision should not be construed
as a ratification of the trial court’s conduct.
10
No. 09CA009739, 2010-Ohio-3940, ¶ 10, fn. 1, quoting Black’s Law Dictionary 83 (8th
Ed.2004).
{¶26} Fannie Mae’s supplemental affidavit clarified that the note was a three-page
document. This averment was supported by the pagination found on the bottom of each page of
the note. The pages were numbered sequentially in the format of “Page 1 of 3.” The
supplemental affidavit further averred that the blank indorsement from Countrywide Bank,
F.S.B. was contained on the back of page three of the note. Thus, the blank indorsement was
part of the original note and there was no separate page or allonge to attach or affix to the note.
While Mr. McFerren was granted leave to file a response, he did not respond to this
supplemental evidence from Fannie Mae. Nor did Mr. McFerren object to the trial court
ordering the submission of additional evidence on this issue.
{¶27} Based on the foregoing, Fannie Mae met its initial Dresher burden of
demonstrating the absence of genuine issues of material fact as to it being the holder of the note.
Further, because Mr. McFerren limited his summary judgment response to disputes as to the
quality of Fannie Mae’s evidentiary materials and he failed to file an executed and notarized
affidavit or other Civ.R. 56(C) evidence opposing the summary judgment motion, this Court
must conclude that Mr. McFerren failed to meet his reciprocal burden of setting forth specific
facts demonstrating the existence of a genuine issue of material fact as it pertained to Fannie Mae
being the holder of the note.
{¶28} As indicated above, “a plaintiff must hold both the note and the mortgage” in
order to establish standing in a foreclosure action. McCormick, 2014-Ohio-1393, at ¶ 8. See
also Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, at ¶ 33. Mr. McFerren argued the “bogus
assignments” “highlighted the existence of genuine issues of material fact.” Mr. McFerren,
11
however, did not develop this argument beyond this statement and this Court will not create an
argument for him. See Cardone, 1998 Ohio App. LEXIS 2028, at *22 (“If an argument exists
that can support this assignment of error, it is not this court’s duty to root it out.”).
{¶29} Mr. McFerren also argued that the note and mortgage were severed, thereby
rendering the mortgage unenforceable and Fannie Mae without an interest in the property.
Contrary to Mr. McFerren’s position, an entity can gain an interest in the mortgage through an
assignment of the mortgage and a chain of mergers. McCormick at ¶ 8. See Bank One, NA v.
Dillon, 9th Dist. Lorain No. 04CA008571, 2005-Ohio-1950, ¶ 8. When “‘an existing bank takes
the place of another bank after a merger, no further action is necessary’ to become a real party in
interest.” JPMorgan Chase Bank, NA v. Carroll, 12th Dist. Clinton No. CA2013-04-010, 2013-
Ohio-5273, ¶ 17, quoting Huntington Natl. Bank v. Hoffer, 2d Dist. Greene No. 2010-CA-31,
2011-Ohio-242, ¶ 15. However, in order to establish standing in a foreclosure case where there
has been a bank merger, the bank must produce the documents reflecting the mergers and an
affiant who can attest to the documents. See West, 2014-Ohio-161, at ¶ 10-13. See also
Edwards, 2017-Ohio-4343, at ¶ 16, citing Wells Fargo Bank, N.A. v. Horn, 142 Ohio St.3d 416,
2015-Ohio-1484, ¶ 19.
{¶30} Fannie Mae’s first affidavit attached two assignments of mortgage to establish its
status as the current mortgagee. On February 19, 2008, the original mortgagee was Mortgage
Electronic Registration Systems, Inc. (“MERS”) as nominee for Quicken Loans, Inc. Pursuant to
the assignment of mortgage recorded on April 19, 2011, MERS assigned the mortgage to BAC
Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP. Along with this
assignment, Fannie Mae attached a two-page Certificate of Filing of BAC Home Loans
Servicing, LP from the state of Texas which indicated that Countrywide Home Loans Servicing,
12
LP amended the name of its limited partnership to BAC Home Loans Servicing, LP. Fannie Mae
also filed an assignment of mortgage recorded on April 28, 2015, which assigned the mortgage
from Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP, fka
Countrywide Home Loans Servicing, LP to Fannie Mae. The complaint was filed thereafter on
July 20, 2015.
{¶31} The assignments of mortgage reflect that the prior mortgagee changed its name
and merged with another entity. While Fannie Mae submitted a photocopy of the two-page
Certificate of Filing of BAC Home Loans Servicing, LP from the state of Texas regarding the
name change of the limited partnership, Fannie Mae failed to include any affidavit evidence
incorporating the document regarding the name change and testifying that the affiant compared
the original to the copy to certify it as correct in accordance with Evid.R. 902 and Evid.R. 1005.
See West at ¶ 10-11. Accordingly, this document was not properly before the trial court when it
ruled on Fannie Mae’s summary judgment motion. See id. Compare Horn at ¶ 19. As to the
merger by Bank of America, N.A., Fannie Mae failed to submit any documentation establishing
that the merger occurred. Similarly, there was no affidavit evidence regarding the merger.
Without documents establishing the merger of the prior mortgagee and corresponding affidavit
evidence regarding that merger and the name change, Fannie Mae failed to meet its Dresher
burden, and there remained a genuine issue of material fact as to whether the mortgage was
validly assigned to Fannie Mae. See West at ¶ 13. Compare Horn at ¶ 19; Edwards at ¶ 12, 16.
{¶32} Fannie Mae refers this Court to McFerren I to establish that the Bank of America,
N.A. merger was previously acknowledged by this Court. See McFerren, 2013-Ohio-3228, at ¶
3. The implication from this statement is that Bank of America, N.A.’s merger is law of the case
13
which further supports Fannie Mae as being the current mortgagee. However, Fannie Mae’s
reliance on the law of the case doctrine is misplaced.
{¶33} “The doctrine of the law of the case * * * establishes that the ‘decision of a
reviewing court in a case remains the law of that case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing levels.’” Hood v. Diamond
Prods., Inc., 137 Ohio App.3d 9, 11 (9th Dist.2000), quoting Pipe Fitters Union Local No. 392 v.
Kokosing Constr. Co., Inc., 81 Ohio St.3d 214, 218 (1998). The line which Fannie Mae relies
upon in McFerren I is contained in the opening statement of facts and is not the decision of this
Court. See McFerren at ¶ 3.
{¶34} After consideration of Fannie Mae’s evidence, this Court can only conclude that
Fannie Mae has failed to meet its initial Dresher burden of demonstrating the absence of genuine
issues of material fact regarding its standing in this case. Accordingly, the trial court erred in
granting summary judgment in favor of Fannie Mae as against Mr. McFerren.
{¶35} Mr. McFerren’s second assignment of error is sustained.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. MCFERREN]
BY GRANTING [FANNIE MAE’S] MOTION FOR SUMMARY JUDGMENT
EVEN THOUGH [FANNIE MAE] FAILED TO PROVE THAT IT SATISFIED
ALL CONDITIONS PRECEDENT MANDATED BY THE NATIONAL
HOUSING ACT OF 1934 (12 U.S.C. § 1701 ET SEQ.) AND 42 U.S.C. §3534(a).
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. MCFERREN]
BY GRANTING [FANNIE MAE’S] MOTION FOR SUMMARY JUDGMENT
BASED UPON THE PRESENCE OF GENUINE ISSUES OF MATERIAL
FACT REGARDING [FANNIE MAE’S] FAILURE TO PROVIDE
SUFFICIENT EVIDENCE OF ENTITLEMENT TO FORECLOSURE AND/OR
DAMAGES.
14
{¶36} In Mr. McFerren’s remaining assignments of error, he asserts that the trial court
erred when it granted summary judgment in favor of Fannie Mae because it did not establish that
1) the conditions precedent had been satisfied, and 2) the note was in default. Based upon the
resolution of the second assignment of error, this Court declines to address Mr. McFerren’s first
and third assignments of error as they have been rendered moot. See App.R. 12(A)(1)(c).
III.
{¶37} Garrick McFerren’s second assignment of error is sustained and this Court
declines to address his first and third assignments of error. The judgment of the Summit County
Court of Common Pleas is reversed and the cause is remanded for further proceedings consistent
with this opinion.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
15
Costs taxed to Appellee.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, P. J.
CONCURS.
HENSAL, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
A. CLIFFORD THORNTON, JR., Attorney at Law, for Appellant.
DAVID A. LOCKSHAW, JR., Attorney at Law, for Appellee.