COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

U. S. BANK, N.A. . CASE NO. A0911797

Plaintiff (Judge Kubicki)

(Magistrate Bachman)

vs MOTION FOR SUMMARY

JUDGMENT

JON JOHNSON, ET AL.

Defendants

Comes the Defendants Jon Johnson and Cheryl Reindl-Johnson, by and through counsel,

and respectfully move this Court to grant them summary judgment pursuant to Civ. R. 56 against

the Plaintiff on the grounds that there is no genuine issue as to any material fact and Defendants

are entitled to a judgment as a matter of law

______________________________
James V. Magee, Jr. (0006809).
Attorney at Law
36 East 7th Street, Suite 2020
Cincinnati, Ohio 45202
Phone: 513-621-9660
Fax: 513-345-3900
Email: jvmageejr@mageelaw.com
Attorney for Defendants Hunt
 MEMORANDUM IN SUPPORT

The note and mortgage which are attached to the Complaint references that the “Lender”

(payee) is Mortgage First, Inc. The assignment which is attached to the Complaint as Exhibit D

is an assignment from Humbert Mortgage, Inc. to U.S. Bank., N.A..

The Complaint lists U.S. Bank, N.A.. as the holder of the note and mortgage. At no place

in the Complaint is there an explanation as to how the note and mortgage were assigned to the

Plaintiff nor how the Plaintiff became entitled to bring these counts against the Defendants.

In November of 2009 there was a self serving affidavit of facts drafted relating to title

pursuant to O.R.C. 5301.252 which is referenced as Exhibit C to the Plaintiff’s Motion for

Summary Judgment which motion has been previously denied by this Court. The affiant neither

expresses how she knows that Mortgage First, Inc. assigned the note and mortgage to the

Plaintiff nor how she knows that the written memorialization of that assignment was lost due to

inadvertence. None of that portion of the affidavit would be admissible in a court of law

pursuant to the standards set forth in O.R.C. 5301.252. However the affidavit does show that

since at least November 2009, Plaintiff has been aware that it did not have legal or equitable title

to the note or mortgage

The Court in Wells Fargo Bank, N.A. v Byrd, 1 was faced with a very similar situation. In

this case the First Appellate District of Ohio had a plaintiff, Wells Fargo, who was not a real

party in interest at the time it filed its foreclosure action. Wells Fargo claimed it was the owner

and holder of a note and mortgage but both the note and mortgage identified in the complaint

named WMC Mortgage Corp as the lender. It turned out WMC assigned the note and mortgage

1
(2008)178 Ohio App 3d 285, 2008-Ohio-4603
to Wells Fargo after the complaint had been filed. The Court of Appeals acknowledged there

was little case-law guidance on the issue of whether Wells Fargo could have subsequently cured

this defect by producing an after-acquired interest in the litigation. It held “that the defect could

not have been cured in that way.”

In analyzing the Civil Rules, and particularly Civ. R. 17(A) which says

“….No action shall be dismissed on the ground that it is not prosecuted by

the real party in interest until a reasonable time has been allowed after
objection for ratification of commencement of the action by, or joinder or
substitution shall have the same effect as if the action had been
commenced in the name of the real party in interest,

the Court drew upon two other Ohio Appellate Districts which had determined that the rule was

(1) not applicable unless the plaintiff had standing to invoke the jurisdiction of the Court in the

first place, either in an individual or representative capacity, with some real interest in the

subject matter2 and (2) that the real party in interest is generally considered to be the person who

can discharge the claim on which the suit is brought or is the party who, by substantive law,

possessed the right to be enforced.3

In light of the foregoing authorities, the Court of Appeals held that, in a foreclosure

action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by

subsequently obtaining an interest in the mortgage.

2
Northland Ins. Co. v. Illuminating Co 11th Dist. Nos 2002-A-0058 and 2002-A-0066, 2004-Ohio
1529
3
Discover Bank v. Brockmeier, 12 Dist No. CA2006-07-078, 2007-Ohio-1552
 Unlike the Byrd case, the Plaintiff here has never been assigned the note and mortgage,

either before the commencement of this action or subsequent to the commencement of the

action.

And as Plaintiff has so ably argued in its failed motion for summary judgment:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers

to interrogatories, written admissions, affidavits, transcripts of evidence and written
stipulations of fact, if any, timely filed in the action, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of
law.

The Plaintiff filed its Complaint on December 15, 2009 with the November 2009

affidavit of Maria Lawrence, employee of U.S. Bank attached. As pointed out before, the Bank

has known it was not the holder by assignment of the note and mortgage upon which it is

foreclosing since at least the November 2009 affidavit. Yet, it filed its Complaint alleging it was

the owner and holder of both the note and mortgage. Then, in its response to Defendants Motion

to Stay at page 3, knowing the mortgage assignment was from Humbert Mortgage, Inc. to

Plaintiff and that Humbert Mortgage, Inc. never owned the note and mortgage, it argued that

“Plaintiff has already asserted that it is the holder of the Note and Mortgage and
attached copies of such to the Complaint along with the Assignment of Mortgage.
As demonstrated by the Assignment of Mortgage, Mortgage First, Inc., the
original Lender, assigned the mortgage to Plaintiff. As such Plaintiff is the real
party in interest.” (emphasis supplied)

In keeping with the decisions discussed above, this Court must grant Defendants

Summary Judgment dismissing the Complaint in this case because the Plaintiff U.S. Bank, N.A..

4
is not the lender referenced in either the note or mortgage, the assignment is defective and,

without more, clearly lacks the standing to bring these counts.

Respectfully submitted,

_____________________________
James V. Magee, Jr. (0006809)
Attorney for Defendants Hunt

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing Motion, by ordinary US Mail,

postage prepaid, upon the following parties or counsel of record this 23rd day of June, 2010:

Julia E. Steelman, Esq.

Lerner, Sampson & Rothfuss
P.O. Box 5480
Cincinnati, Ohio 45201-5480

_____________________________
James V. Magee, Jr.