Deutsche Bank V. Holden | 9th Dist. Appellate Court in Ohio - Inconsistencies between the (2) different copies of the note and the lack of an explanation based on personal knowledge
STATE OF OHIO COUNTY OF SUMMIT
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
DEUTSCHE BANK NATIONAL TRUST. COMPANY AS TRUSTEE Appellee v. GLENN E. HOLDEN, et al. Appellants EXCERPT: {~14} In the recent case of Fannie Mae v. Trahey, 9th Dist. Lorain No. 12CAOI0209, 2013-0hio-3071, this Court also faced a similar issue when the foreclosing lender attached a copy of the note to its complaint that contained a blank indorsement from the original lender. In that case, the foreclosing lender filed an amended complaint, which included a different copy of the note. The note attached to the amended complaint demonstrated an indorsement from the original lender to another lender and then a second indorsement from that lender in blank. We concluded that the inconsistencies between the indorsements contained on the submitted notes created a genuine issue of material fact that precluded summary judgment as we could not ascertain which lender possessed the note at the time the foreclosure was filed. Id. at ~ 12. But see Bridge v. Ocwen Fed. Bank FSB, N.D.Ohio No. 1:07 CV 2739,2013 WL 4784292 (Sept. 6, 2013) (slip opinion) (distinguishing Trahey and finding that two different copies of identical promissory note did not create genuine issue of material fact so as to preclude summary judgment from being granted to the foreclosing lender). {~15} Due to the inconsistencies between the copies of the note and the lack of an explanation based on personal knowledge as to how Deutsche Bank came to offer two different copies of the note into the record, this Court concludes that there is a genuine issue of material fact as to whether Deutsche Bank was the holder of the note at the time the complaint was filed. Accordingly, the trial court erred in granting Deutsche Bank's motion for summary judgment on its foreclosure complaint. ...