Lender is Entitled to Pursue its Foreclosure on the Equitable Mortgage Theory

OHIO CASE LAW UPDATE
Wilmington Sav. Fund Soc'y FSB as Trust v. Woods, 2020-Ohio-4599, (2nd District 2020)
This case is of particular interest to lenders as it is the first decision in Ohio where a Court of Appeals acknowledged the right of a lender to pursue foreclosure of an equitable mortgage where the borrower is deceased, the mortgage was lost and never recorded and title to the property was transferred. The trial court judge granted a Motion for Summary Judgment filed by the heirs of the deceased borrower and held that under Ohio law, a mortgage becomes operative as to third parties only when it is recorded. Lender’s counsel argued on appeal argued that the case law relied upon by the trial court applied to bona fide purchasers for value and the heirs could not inherit an interest greater than what the decedent held. The Court of Appeals agreed and held that the heirs of a decedent do not inherit a greater interest in the estate's property than the interest held by the decedent. Therefore, the lender is entitled to pursue its foreclosure on the equitable mortgage theory.