First Union National Bank v. Hufford, 146 Ohio App. 3d 673

Summary

The Ohio appellate court reversed a foreclosure summary judgment because First Union National Bank failed to establish that it was the real party in interest entitled to enforce the promissory note and mortgage. The court also held that the plaintiff’s status as the real party in interest was timely challenged and that the trial court had not adequately determined whether HomEq Servicing Corporation was a necessary party. The matter was remanded for further proceedings.

Holdings

1. A defendant must timely raise a challenge to the plaintiff's status as the real party in interest, but noncompliance with Ohio Civ.R. 17(A) is not an affirmative defense that is waived merely because it was not asserted in the initial responsive pleading or motion.
2. The bank was not entitled to summary judgment because it failed to produce sufficient evidence establishing its right to enforce the note and mortgage, leaving the identity and priority of the mortgage holder as a genuine issue of material fact.
3. If HomEq Servicing Corporation was an indispensable party because of an interest in the note or mortgage, the trial court was required to order joinder rather than enter summary judgment and a decree of foreclosure.

Questions Presented

1. Whether the trial court properly granted summary judgment when the plaintiff had not established that it was the real party in interest entitled to enforce the note and mortgage.
2. Whether Hufford timely raised the issue of the plaintiff's status as the real party in interest despite not pleading it as a conventional affirmative defense in the initial answer.
3. Whether HomEq Servicing Corporation might be a necessary or indispensable party whose joinder had to be resolved before summary judgment and foreclosure.

Disposition

reversed_and_remanded