U.S. Bank National Association, as Trustee for Banc of America Funding Corporation Mortgage Pass-Through Certificates, Series 2006-4 v. Thomas W. Petrarca et al.

Summary

The Ohio Seventh District Court of Appeals reviewed a foreclosure judgment in favor of U.S. Bank National Association against Thomas and Angela Petrarca. The court held that U.S. Bank had standing based on its possession of the note and assignment of the mortgage, and that the borrowers’ loss-mitigation arguments did not prevent foreclosure. However, the court reversed and remanded the summary judgment because a referenced affidavit supporting default and other foreclosure elements was not properly filed or part of the appellate record.

Holdings

1. U.S. Bank had standing to foreclose because the record showed that it was the holder of the note indorsed in blank and the assignee of the mortgage before the complaint was filed. A minor discrepancy in the trustee's name did not establish that the note and mortgage belonged to a different entity.
2. The alleged fourth loss-mitigation application did not prevent foreclosure because the record did not establish that it was complete, and the servicer was not required to process a subsequent application after three prior complete applications had been denied while the borrowers remained delinquent.
3. U.S. Bank was not entitled to summary judgment because the affidavit on which it relied was not properly filed or part of the record, leaving insufficient evidentiary support for default, the relevance of business records, and other elements of the foreclosure claim.

Questions Presented

1. Whether U.S. Bank had standing to initiate the foreclosure action based on its possession of the note indorsed in blank and its assignment of the mortgage.
2. Whether Angela Petrarca's alleged fourth loss-mitigation application required the servicer to review the application or prevented foreclosure under 12 C.F.R. 1024.41.
3. Whether U.S. Bank established the elements of its foreclosure claim and was entitled to summary judgment when the affidavit supporting key evidentiary assertions was not properly filed.

Disposition

reversed_and_remanded