CASELAW AND LEGISLATIVE UPDATE

Transcription

1 CASELAW AND LEGISLATIVE UPDATE By Richard T. Craven Sikora Law LLC For the Ohio Land Title Association Spring Seminar May 3, 2013

2 TOPICS CASE LAW Schwartzwald Execution Defects and Validity Equitable Subrogation Construction Mortgage Acknowledgment Clause Title Insurance Coverage LEGISLATION Ohio Legacy Trust Act Receiverships

3 DOES THE BANK HAVE STANDING TO FORECLOSE? Federal Home Loan Mortgage Corporation v. Schwartzwald Facts Holding: Plaintiff did not have an interest in the Note or Mortgage at the time it filed its foreclosure action, so the Bank did not have standing to invoke the jurisdiction of Court. Bank could not cure lack of standing after commencing action by obtaining an interest in the litigation and substituting itself as the real party in interest. Receiving an assignment of a Note and Mortgage from the real party in interest subsequent to the filing of the action but prior to the Entry of judgment does not cure a lack of standing to file a foreclosure action. Fed. Home Loan Mortg. Corp. v. Schwartzwald, 2012-Ohio-5017, 134 Ohio St. 3d 13, 979 N.E.2d 1214.

4 DOES THE BANK HAVE STANDING TO FORECLOSE? Is there a Schwartzwald problem? Timing Sale What are the ramifications of Schwartzwald? Subsequent Cases Interpretation

5 MORTGAGE ENCUMBERS PROPERTY DESPITE DEFECTS Facts Holding: The Second District Court of Appeals reversed the Trial Court holding that a mortgage encumbered the borrower s interest in the property. The borrower s intent to convey the entire fee simple interest in the property was clear by the express terms of the mortgage, despite certain defects. The Court further found that despite the omission of the borrower s name in the granting clause of the mortgage, pursuant to the co-signer provision in the mortgage, the borrower signed the mortgage for the purpose of mortgaging the borrower s interest in the property. Citimortgage v. Kermeen, 2nd Dist. No CA 2, 2012-Ohio-1655, at 49 (April 13, 2012).

6 THE FIFTH DISTRICT COURT OF APPEALS APPLIES EQUITABLE SUBROGATION Facts: The mortgagee had signed affidavits misleading lender into believing that there were no other outstanding mortgages on the property and then did not use the borrowed money to pay off all debts on the property even though there was money available to pay off all such debts. Holding: A lender held a valid first lien on a property under the doctrine of equitable subrogation despite the fact that the lender had negligently failed to identify a prior mortgage on the property and to recognize that a subordination of a prior mortgage was invalid. Take away: Balance the equities! Fifth Third Mtge. Co. v. Fillmore, 1st Dist. No. 12 CAE , 2013-Ohio-312 at (Jan. 28, 2013).

7 Construction mortgage entitled to super priority A construction mortgage has super-priority under Ohio law, so long as the following three requirements are satisfied: the proceeds from the loan associated with the mortgage were used either for improvements on the subject real estate or to satisfy prior encumbrances on the real estate; the mortgage contains the correct name and address of the mortgagee; and the mortgage contains a covenant that allows the mortgagee to conduct certain acts on behalf of the mortgagor, including but not limited to the ability to make payments directly to potential mechanic s lien claimants. R.C ; Cleveland Constr., Inc. v. Schneider, 8th Dist. Nos , 97352, 97361, 97513, 2012-Ohio-5707.

8 COVERAGE Fifth Third Bank v. Chicago Title Title agent fraud caused lender to lose priority Title Insurer denies claim alleging that lender failed to follow objectively reasonable and prudent underwriting guidelines.

9 COVERAGE Holding: Sixth Circuit affirmed the Trial Court Decision granting summary judgment to the lender. Alleged underwriting failure is not similar to a title defect or encumbrance. The title insurer s obligation to provide coverage was not conditional upon the quality of the lender s underwriting. Fifth Third Mortg. Co. v. Chicago Title Ins. Co., 692 F.3d 507, 512, 2012 WL (6th Cir. 2012).

10 MORTGAGE IN SUBSTANTIAL COMPLIANCE DESPITE WRONG NAME IN ACKNOWLEDGMENT CLAUSE Trustee filed an adversary proceeding to avoid mortgage based upon the fact that the acknowledgment clause stated the wrong name of the mortgagor. Holding: The Mortgage was held to be valid, because it provided a means for correcting itself. The District Court focused on the language the above-named Mortgagor. Kellner v. City of Kettering (In re Koogle), 3:12-CV-00176, 2013 WL (S.D. Ohio Feb. 19, 2013).

11 LEGISLATION Ohio Legacy Trust Act (Effective March 27, 2013) Purpose Bankruptcy Exemptions Constructive Notice Receivership Statute (Pending) House Bill No. 9 Resolves ambiguities Clarifies Receiver s powers

12 LEGISLATION In the Works Mortgage Subrogation Mortgage Satisfaction Closing Protection

13 Questions and Answers Rick Craven Sikora Law LLC Columbus Office 88 W. Main Street Columbus, Ohio (614)