In a recent Ohio decision, the Eighth District Court of Appeals ruled that an affidavit of ownership sworn out more than a year after the foreclosure complaint was filed is insufficient to vest a bank with standing to file and maintain a foreclosure action.

In Deutsche Bank National Trust Co. v. Triplett, 2011 –Ohio-478, the lender filed a complaint in foreclosure on January 10, 2008. The complaint alleged that the borrower had defaulted on the mortgage and attached a copy of the mortgage and promissory note. On February 25, 2008, after the borrower failed to answer the complaint, the lender filed a motion for default judgment. Attached to the motion was a final judicial report which indicated, among other things, that on January 31, 2009, the original lender had assigned the note and mortgage to the current lender, Plaintiff, and that it was duly recorded on February 6, 2008.

The borrower subsequently received leave of court to file an Answer and a Counterclaim. Shortly thereafter, Deutsche Bank filed an affidavit off ownership dated March 31, 2009. The bank’s servicing agent averred that the lender was the owner and holder or the promissory note and mortgage that were attached to the foreclosure complaint. The affidavit also provided that the lender purchased, acquired, and/or otherwise obtained possession of the promissory note and mortgage on February 1, 2007, prior to the filing of the complaint on January 10, 2008.

The lender subsequently filed for summary judgment. The magistrate issued a decision granting summary judgment in favor of the lender. The borrower filed objections to the magistrate’s decision but the trial court overruled the objections as untimely filed and adopted the magistrate’s decision granting summary judgment in favor of lender. The borrower appealed arguing that the trial court erred in adopting the magistrate’s decision granting summary judgment to the lender.

The Eighth District Court of Appeal reversed the decision of the Cuyahoga Court of Common Pleas on the grounds that the lender did not have standing to bring the law suit. The court reiterated its standing requirement as outlined in Wells Fargo Bank, N.A. v. Jordan, Cuyahoga App. No. 91675, 2009-Ohio-1092, - the putative mortgagee must own the mortgage at the time of the filing of the complaint, otherwise it lacks standing. Since it was undisputed that the assignment of the mortgaged was executed and recorded after the lender filed its foreclosure complaint, the only evidence in the record to support the magistrate’s decision was the affidavit of ownership filed in the case.

The court proceeded to analyze whether the affidavit of ownership, standing alone, was sufficient to satisfy the standard outlined in Wells Fargo v. Jordan. The court cited to its decision in U.S. Bank Natl. Assn. v. Duval, Cuyahoga App. 94714, 2010-Ohio-6478, where it rejected an affidavit that stated the plaintiff acquired a note and mortgage prior to the filing of the complaint. The Eighth District Court of Appeals held that the affidavit of ownership was insufficient to vest the bank with standing to file and maintain the foreclosure action. Since there was no additional evidence beyond the affidavit, the lender was not entitled to judgment as a matter of law.