Leodis Harris, et al v. Option One Mortgage Corporatio, et al
OPINION filed : AFFIRMED the decision of the district court, decision not for publication. Eric L. Clay, Circuit Judge; Deborah L. Cook, Circuit Judge and Jane R. Roth, Circuit Judge for the Third Circuit, AUTHORING.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0268n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
Mar 15, 2013
LEODIS HARRIS, FATIMAH M. HARRIS,
OPTION ONE MORTGAGE
CORPORATION, et al.,
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
CLAY, COOK, and ROTH,* Circuit Judges.
JANE R. ROTH, Circuit Judge.
Leodis and Fatimah Harris appeal the district court’s decision dismissing their quiet title
action against Option One Mortgage Corporation, Deutsche Bank National Trust Company, and
American Home Mortgage Servicing, Inc. (collectively, appellees). For the reasons that follow, we
affirm the decision of the district court.
On July 10, 2006, Option One loaned the Harrises $325,000, which was evidenced by a note.
The loan was secured by a mortgage on the Harrises’ home in Cuyahoga County, Ohio. The
mortgage was recorded with the Cuyahoga County Recorder’s Office on July 14, 2006. Option One,
The Honorable Jane R. Roth, Senior Circuit Judge for the United States Court of Appeals for the
Third Circuit, sitting by designation.
Harris, et al, v. Option One, et al.
which is now defunct, subsequently assigned the note to Deutsche Bank, although the assignment
of the mortgage was never recorded.
On February 16, 2012, the Harrises filed a quiet title action against appellees in the
Cuyahoga County Court of Common Pleas. The case was removed to the Northern District of Ohio,
where Deutsche Bank filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
Although Option One and American Home Mortgage Servicing did not file motions to dismiss, the
district court treated Deutsche Bank’s motion as filed on their behalf. On May 15, 2012, the district
court granted the motion to dismiss. The Harrises appealed.
The Harrises assert that, because Option One never recorded the assignment of the Harrises’
mortgage to Deutsche Bank, Deutsche Bank may no longer claim an interest in the Harrises’
property. This argument is misguided.
“For nearly a century, Ohio courts have held that whenever a promissory note is secured by
a mortgage, the note constitutes the evidence of the debt and the mortgage is a mere incident to the
obligation.” U.S. Bank Nat’l Assn. v. Marcino, 908 N.E.2d 1032, 1038 (Ohio Ct. App. 2009) (citing
Edgar v. Haines, 141 N.E. 837, 838 (Ohio 1923)). “Therefore, the negotiation of a note operates
as an equitable assignment of the mortgage, even though the mortgage is not assigned or delivered.”
Id. (emphasis added) (citation omitted). Applying the rule from Marcino to this case, Deutsche
Bank may maintain an interest in the Harrises’ home because Option One’s assignment of the note
The district court had subject matter jurisdiction pursuant to 28 U.S.C. § 1332. We have
jurisdiction over this appeal under 28 U.S.C. § 1291. We review a district court’s decision to grant
a Rule 12(b)(6) motion de novo. Dudenhoefer v. Fifth Third Bancorp, 692 F.3d 410, 416 (6th Cir.
Harris, et al, v. Option One, et al.
to Deutsche Bank was sufficient to transfer the mortgage to Deutsche Bank, even though Deutsche
Bank never recorded the mortgage. See id.; see also Restatement (Third) of Property § 5.4 cmt. b
(noting that “the mortgage follows the note”). Therefore, the district court properly dismissed the
Harrises’ cause of action for failure to state a claim.2
Additionally, to the extent that the Harrises argue that the district court improperly viewed
Deutsche Bank’s motion to dismiss as filed on behalf of Option One and American Home Mortgage
Servicing, this argument is without merit. See Rowe v. Register, 172 F. App’x 660, 661 n.1 (6th Cir.
2002) (noting that the district court could properly treat a motion to dismiss filed by one defendant
as filed on behalf of all defendants).
For the foregoing reasons, we affirm the decision of the district court.
Appellants’ citation to Ohio’s recordation statute is unavailing. The recordation requirement under
Ohio law is designed “to protect subsequent bona fide purchasers.” BAC Home Loan Servicing, L.P.
v. Hall, No. CA2009-10-135, 2010 WL 2891780, at *3 (Ohio Ct. App. July 26, 2010) (citing O.R.C.
§ 5301.25). The recordation requirement thus has nothing to do with Appellants’ claim because it
was enacted to protect subsequent purchasers, not the current owner.
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