PTF: Correct Your Honor....
Court: And then Landhome assigned it to whom....
PTF: We have no idea, that's the problem. We're here to get Discovery to find out what happened!!!"
Cross-Post: Deadly Clear Journal
Quick Update from Ohio:
Bank of Am., N.A. v. Smith, 2014-Ohio-2845 -- The hits keep coming. Copies do not prove ownership of a Note, Mortgage/Deed of Trust nor do they confer the right to foreclose. Here is an analysis of the Note followed by the Mortgage at paras 14-15 and 18, respectively.
[*P14] A review of the case law in Ohio indicates that, in order for a trial court to consider the content of a promissory note in a foreclosure action, that note must be properly authenticated and admitted into the record. The Sixth Appellate District held that an affidavit that failed [**10] to properly authenticate a promissory note in a foreclosure case precluded its consideration and prevented summary judgment in favor of the bank. HSBC Mortg. Servs., Inc. v. Edmon, 6th Dist. Erie No. E-11-046, 2012-Ohio-4990, ¶ 23; see also BAC Home Loans Servicing v. Moore, 5th Dist. Licking No. 12 CA 50, 2012-Ohio-6284, ¶ 27; Wachovia Bank of Delaware v. Jackson, 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶ 39, 53-57.
[*P15] In its complaint, Bank of America's only claim that Smith owed it money arises from its allegation that Smith breached the terms of the promissory note. And Bank of America failed to properly introduce the note into the record to support its motion for summary judgment. Therefore, summary judgment was improper as to that claim.
[*P18] In this case, there is nothing from the Hamilton County Recorder's office certifying that the photocopy (of the Mortgage) was an accurate reproduction of the original. Therefore, it does not qualify for self-authentication pursuant to Evid.R. 902. Without an affidavit attesting to its authenticity, it was not properly before the trial court. Therefore the trial court erred when it considered the mortgage as evidence when it granted Bank of America's motion for summary judgment.
Note: This is in many ways the most important Mortgage Movie I have made, as MERS/MERSCORP, NWTS, and Routh, Crabtree did not escape a Motion to Dismiss for Civil Conspiracy to Steal and Resell... as such it is even more momentous than the Decision Reversing a sale in Bradburn v. ReconTrust, another case involving vertical integration and deceit, breach of Good Faith Covenants, etc. In essence Your Honor, the Emperor has no clothes.... and you can't bifurcate the note from the Deed of Trust. When MERS or anyone else "conveys" anything such as a Deed of Trust or Mortage by Assignment without a Note it is a legal nullity.
Significantly, the Court -- with urging from Stafne Attorney Brian Fisher captured on video -- affirmed Carpenter v. Longan 88 U.S. 271 (1872). Then there are the theft with intent to resell claims that survived as well......
"The Borrower needs to know who they are supposed to be negotiating with (Counsel and Court share a smile of common sense reasoning and logic).... The Note has to go first and the Deed of Trust is simply incident to that Transfer. If you just transfer the Deed of Trust, you've got nothing."-Brian Fisher, Esq.Video of the Bench Ruling in Pardo v. NWTS et al 14-2-11741-8