The Ohio Supreme Court Acquiesces to Fraud

January 10, 2018

 

“Whether the assignment was fraudulent is not relevant in this case…”

Chenault v. Deutsche Bank Natl. Trust Co., 2015-Ohio-1850

Appellants argue that the December 14, 2006 assignment is invalid due to a number of errors. Stephen Broviak, who Deutsche Bank claims executed the assignment, could not confirm that the signature on the assignment was his, stating that he did not recall signing the document, and the stamped name “Steve Broviak,” that appears by the signature line, is not how he signs his name; rather, he uses the name “Stephen.” (R. 99, Affidavit of Stephen Broviak.) The notary for the assignment has no record of the assignment or any document for Steve Broviak in his journal of notarial acts and states that there is no notary seal. (R. 98, Affidavit of Ryan Weik.) Appellants made the argument that the signature of the assignment is invalid in its May 9, 2014 Memorandum Contra to appellees’ Motion for Summary Judgment.

{¶ 16} However, even if the December 2006 assignment of the mortgage is fraudulent, under Ohio Law, Deutsche Bank can still enforce the note and the mortgage. Pursuant to R.C. 1309.203(G), “[t]he attachment of a security interest in a right to payment or performance secured by a security interest or other lien on personal or real property is also attachment of a security interest in the security interest, mortgage, or other lien.” “Thus, by operation of law, transfer of the mortgage occurs at the point the note is negotiated.” United States Bank Natl. Assn. v. Gray, 10th Dist. No. 12AP-953, 2013-Ohio-3340, ¶ 35. Even if the assignment of the mortgage was invalid, Deutsche Bank would still be entitled to enforce the mortgage because the “physical transfer of the note endorsed in blank, which the mortgage secures, constitutes an equitable assignment of the mortgage, regardless of whether the mortgage is actually (or validly) assigned or delivered.” Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. No. 98502, 2013-Ohio- 1657, ¶ 65; Gray at ¶ 32. Thus, whether the assignment was fraudulent is not relevant in this case since it does not affect summary judgment. Turner v. Turner, 67 Ohio St.3d 337 (1993) (Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment).