Faulty Affidavit Failing To Establish That Prior Notice Of Default & Acceleration Was Given To Homeowner Derails Another Foreclosure Action

William A. Roper, Jr. writes in the Mortgage Servicing Fraud Forum:

• The Ohio Court of Appeals for the Ninth District [] reversed another Summary Jugment granted by a Summit County Trial Court in the case Central Mortgage Company v. Elia.



• The Court found that the conclusory averment within the plaintiff's affidavit that all conditions precedent had been satisfied was insufficient to prove compliance with Section 22 of the mortgage.(1) Does that sound familiar?

He goes on to state:

• After looking through a few Ohio cases I do think it is important to point out that the Plaintiff does seem to be getting an assignment done prior to commencement (about 30 days) but they constantly fail to plead an endorsed copy of the note, even in contested cases, they have failed to attach an endorsed copy of the note to a motion for [summary judgment].



• There are also many deficiencies in the affidavits submitted by the Plaintiffs, it's important to know the cases and rules on what makes an admissible affidavit. Failure to raise the deficiencies in these affidavits will result in a waiver of the argument.

For Bill Roper's entire post thread, see Ohio Appellate Court Reverses Another Summary Judgment on Failure To Prove Conditions Precedent: Central Mortgage Company v. Elia.

For the ruling, see Central Mortgage Company v. Elia, No. 25505, 2011 Ohio 3188 (Oh. App. 9th Dist. June 29, 2011).

(1) Section 22 refers to the written requirement contained in the mortgage that the borrowers be given written notice by the foreclosing lender prior to the start of the foreclosure process specifying the default, the action needed to cure the default, and the time period within which to do so.