https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA131-HB-390

Click on “View Current Version” to download.

The most relevant language is found on pages 56-58, at § 2308.02.

Part (A) first appears to require PETE status under ORC 1303.31 (UCC 3-301). But later in the same sentence there is a disjunctive “or,” that states “or a person with the right to enforce the obligation secured by the mortgage pursuant to law outside of Chapter 1303 of the Revised Code.” That language is repeated in (C)(2). That is rather disturbing.

A recent Ohio Supreme Court opinion (Deutsche Bank Natl. Trust Co. v. Holden, Slip Opinion No. 2016-Ohio-4603) held that being a “party entitled to enforce” a note IS required to enforce a note. It also held that being a “party entitled to enforce” a note IS required to enforce a mortgage. The court then expressed that the burden of proof required to establish being a “party entitled to enforce” a note is satisfied by … an assignment of mortgage, stating “For purposes of summary judgment, the bank established that it had received an assignment of the Holdens’ mortgage, that its mortgage interest survived the bankruptcy, and that the Holdens had defaulted. Thus, the bank met its Civ.R. 56 burden of proof …”

(C)(3) lists a number of factors. Most of these are subject to “fudging.” An easy fudged combination could be:

(d) – established with nothing more than tallish grass being referred to as “debris”
(h) – established by the inspector not knocking on the door
(k) – established by bank’s counsel merely uttering “Your Honor, the property is abandoned, and you can accept it as true because I’m an attorney and I say it is.”

Part (D) references an “oral hearing,” but the statute makes no notice requirements for such hearing.

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There is a provision for a mortgagor to file a “written statement with the court indicating that the property is not vacant and abandoned,” at (C)(5). In accordance with that provision I recommend every homeowner in the state of Ohio preemptively record an “Affidavit of Occupancy, Nonvacancy, and Nonabandonment” (or some such thing) with the local recorder. I also recommend that every homeowner in the state of Ohio involved in foreclosure litigation preemptively file with the court a certified copy of the aforementioned affidavit.