U.S. Bank Natl. Assn. v. Urbanski , 2014 Ohio 2362 ( 2014 )

[Cite as U.S. Bank Natl. Assn. v. Urbanski, 2014-Ohio-2362.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
U.S. Bank National Association, as :
Trustee for BNC Mortgage Loan Trust
2007-2, Mortgage Pass-Through :
Certificates, Series 2007-2,
:
Plaintiff-Appellee, No. 13AP-520
: (C.P.C. No. 12CVE03-2924)
v.
: (REGULAR CALENDAR)
The 3076 Representation Terrace
Trust, Brian K. Urbanski, as Trustee, :
Defendant-Appellant, :
Robert L. Hendrix et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on June 3, 2014
Dinn, Hochman & Potter, LLC, and Benjamin D. Carnahan,
for appellee.
Duncan Simonette, Inc., Brian K. Duncan, and Bryan D.
Thomas, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} The 3076 Representation Terrace Trust, Brian K. Urbanski, as Trustee
("Urbanski"), defendant-appellant, appeals the judgment of the Franklin County Court of
Common Pleas, in which the court granted the motion for summary judgment filed by
No. 13AP-520 2
U.S. Bank National Association, as Trustee for BNC Mortgage Loan Trust 2007-2,
Mortgage Pass-Through Certificates, Series 2007-2 ("USB"), plaintiff-appellee.
{¶ 2} On January 26, 2007, Robert L. Hendrix and Rhonda C. Wheeler executed a
promissory note ("the note") payable to BNC Mortgage, Inc. ("BNC"), in the sum of
$99,200. The note was secured by a mortgage on the property. BNC subsequently
executed an allonge to the note indorsed in blank. USB came into possession of the note.
Hendrix and Wheeler executed a mortgage to Mortgage Electronic Registration Systems,
Inc. ("MERS"), as nominee for BNC, and the mortgage was recorded on February 7, 2007.
{¶ 3} Hendrix and Wheeler quit paying under the note and mortgage sometime in
early 2010. On May 16, 2011, Hendrix and Wheeler transferred their interest in the
property to Urbanski for zero compensation. MERS assigned the mortgage to USB on
February 21, 2012.
{¶ 4} On March 6, 2012, USB filed a complaint in foreclosure against Hendrix,
Wheeler, Urbanski, and several other entities with a possible interest in the property.
Urbanski filed an answer and counterclaim. Hendrix and Wheeler did not answer the
complaint. On May 10, and July 5, 2012, Urbanski filed motions to dismiss, based on the
claim that USB was not the holder of the note and mortgage. On July 24, 2012, the trial
court denied Urbanski's motions to dismiss.
{¶ 5} On March 26, 2013, USB filed a motion for summary judgment, claiming it
was the proper holder of the note and mortgage and was entitled to foreclose on the
property. On April 1, 2013, Urbanski filed a motion for summary judgment, claiming USB
was not the holder of the note and mortgage and that the court should find that USB
admitted it was not entitled to foreclose because it failed to respond to Urbanski's request
for admissions.
{¶ 6} On May 17, 2013, the trial court issued a decision and entry granting USB's
motion for summary judgment and denying Urbanski's motion for summary judgment.
The trial court concluded USB was the holder of the note and mortgage and was entitled
to foreclose on the property. Of note, the trial court found Urbanski's "menagerie of
arguments" to be "utter garbage," with some bordering on "frivolous," and believed
Urbanski "purposely mislead" the court regarding the request for admissions issue.
No. 13AP-520 3
Urbanski appeals the judgment of the trial court, asserting the following assignment of
error:
THE TRIAL COURT ERRED IN DENYING
DEFENDANT/APPELLANT'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING PLAINTIFF/APPELLEE'S
MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO
ITS COMPLAINT BECAUSE THERE WERE GENUINE
ISSUES OF MATERIAL FACT, INCLUDING BUT NOT
LIMITED TO, WHETHER PLAINTIFF HAD STANDING TO
INITIATE THE ABOVE-CAPTIONED ACTION[;] WHETHER
PLAINTIFF WAS A REAL PARTY IN INTEREST; WHETHER
PLAINTIFF CAN DEMONSTRATE CHAIN OF TITLE OF
THE PROMISSORY NOTE; WHETHER PLAINTIFF'S
AFFIDAVIT COMPLIED WITH THE RULES OF
EVIDENNCE AND/OR APPLICABLE LAW, AS WELL AS ITS
ACCURACY; WHETHER PLAINTIFF'S FAILURE TO
TIMELY RESPOND TO DEFENDANTS REQUEST FOR
ADMISSIONS SHOULD HAVE RENDERED THE SAME AS
BEING DEEMED ADMITTED; AND/OR WHETHER ANY
UNDERLYING DOCUMENTATION, INCLUDING BUT NOT
LIMITED TO, THE ALLONGE HAD BEEN ALTERED.
{¶ 7} Urbanski argues in his assignment of error that the trial court erred when it
granted summary judgment in favor of USB and denied his motion for summary
judgment. Summary judgment is appropriate when the moving party demonstrates that:
(1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment
as a matter of law, and (3) reasonable minds can come to but one conclusion when
viewing the evidence most strongly in favor of the non-moving party, and that conclusion
is adverse to the non-moving party. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54,
2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584,
¶ 29. Appellate review of a trial court's ruling on a motion for summary judgment is de
novo. Hudson at ¶ 29. This means that an appellate court conducts an independent
review, without deference to the trial court's determination. Zurz v. 770 W. Broad AGA,
L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio
App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
{¶ 8} When seeking summary judgment on the grounds that the non-moving
party cannot prove its case, the moving party bears the initial burden of informing the
trial court of the basis for the motion and identifying those portions of the record that
No. 13AP-520 4
demonstrate the absence of a genuine issue of material fact on an essential element of the
non-moving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the non-moving party has no evidence to prove its case. Id.Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
Id. If the moving party meets its burden, then the non-moving party has a reciprocal
burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R.
56(E); Dresher at 293. If the non-moving party does not so respond, summary judgment,
if appropriate, shall be entered against the non-moving party. Id.{¶ 9} In the present case, Urbanski argues that USB did not have standing at the
time it filed its complaint and/or was not the holder of the note and mortgage, asserting
several arguments. Urbanski first contends that the note was not properly indorsed
because the note attached to the complaint does not contain an indorsement; thus, there
was no valid negotiation of the note. Urbanski also contends that USB did not own the
note at the time the complaint was filed, because under the trust agreement on file with
the United State Securities and Exchange Commission ("SEC"), only the depositor,
Structured Asset Securities Corporation can transfer a note to the trust. Urbanski further
contends that it is necessary to have a recorded assignment of mortgage in order to
comply with the Statue of Frauds.
{¶ 10} We disagree with Urbanski's contentions. Pursuant to R.C. 1303.31(A), a
"person entitled to enforce" an instrument means any of the following persons: (1) the
holder of the instrument, (2) a non-holder in possession of the instrument who has the
rights of the holder, or (3) a person not in possession of the instrument who is entitled to
enforce the instrument pursuant to Section 1303.38 or division (D) of Section 1303.58 of
the Revised Code. Bank of Am., N.A. v. Pasqualone, 10th Dist. No. 13AP-87, 2013-Ohio-
5795, ¶ 31. Initially, the promissory note attached to the complaint did, in fact, contain an
allonge indorsed in blank, contrary to Urbanski's claim. Furthermore, Letron Kelly, a
contract manager for USB's loan servicer, Ocwen Loan Servicing, averred in his affidavit
that USB was in possession of the original note at the time of the filing of the complaint.
See U.S. Bank, N.A. v. Adams, 6th Dist. No. E-11-070, 2012-Ohio-6253, ¶ 18 (finding that
No. 13AP-520 5
the bank's possession of the note was demonstrated by the attachment of a copy of the
note to the complaint and the affidavit, coupled with an employee's affidavit statements
concerning the bank's possession of the note). Kelly also averred that the note was
indorsed in blank. A note indorsed in blank makes the instrument payable to the bearer.
R.C. 1303.25(B). Under the present indorsement, USB qualified as a holder of the note
because it was the one in possession of a negotiable instrument that was payable to the
bearer. See R.C. 1301.201(B)(21)(a). Therefore, USB was the holder of the note, and,
accordingly, USB was entitled to enforce the note pursuant to R.C. 1303.31(A)(1).
{¶ 11} Furthermore, with regard to the mortgage, USB presented unrebutted
evidence that the mortgage was assigned to USB, via a copy of the assignment of mortgage
attached to the complaint, which indicated that the mortgage was assigned to USB on
February 21, 2012. Notwithstanding the explicit assignment of mortgage, this court has
also held that an assignment of the interest of the seller or other grantor of a security
interest in a note automatically transfers a corresponding interest in the mortgage to the
assignee. Pasqualone at ¶ 40. Thus, in the present case, where the note was indorsed in
blank and USB was the holder of the note, the mortgage was equitably assigned to USB.
{¶ 12} As for Urbanski's argument that USB did not "own" the note at the time the
complaint was filed because under the trust agreement on file with the SEC, only the
depositor, Structured Asset Securities Corporation could transfer a note to the trust, this
argument is without merit. Initially, we point out that Urbanski did not raise this
argument in his motion for summary judgment or memorandum contra USB's motion for
summary judgment; therefore, it is waived. See Cowan v. Interdyne Corp., 3d Dist. No. 1-
12-26, 2013-Ohio-642, ¶ 27 (a party's failure to raise an issue in response to an adverse
party's motion for summary judgment waives that issue for purposes of an appeal);
McVey v. Carthage Twp. Trustees, 4th Dist. No. 04CA44, 2005-Ohio-2869, ¶ 6 (failure to
raise arguments in motion for summary judgment waives them for purposes of appeal).
Notwithstanding, while a debtor has the right to challenge whether the creditor is the
holder of the note, a debtor generally lacks standing to challenge who the owner of the
note is because it does not impact who is entitled to enforce the note. Pasqualone at ¶ 25,
citing In re Veal, 450 B.R. 897, 912-13 (Bankr.9th Cir.2011). In other words, the question
No. 13AP-520 6
of ownership of a note is not the debtor's concern. Id. Thus, we find Urbanski's argument
is without merit.
{¶ 13} We also find meritless Urbanski's contention that it is necessary to have a
"recorded" assignment of mortgage in order to comply with the Statue of Frauds.
Urbanski cites no authority for his proposition. If by "recorded" Urbanski means that the
assignment must be in writing, which is what he seems to suggest in his appellate brief,
there was clearly a writing evidencing the assignment of the mortgage, as discussed above.
Furthermore, as we also explained above, the mortgage was equitably assigned to USB
when USB became the holder of the note. Therefore, we find this argument without merit.
{¶ 14} Urbanski next asserts that the Kelly affidavit submitted by USB failed to
comply with the Ohio Rules of Evidence and was inaccurate. Urbanski first contends that
Kelly's affidavit is generic in nature because it does not mention the allonge attached to
the note and inaccurately depicts the assignment of mortgage. Initially, Urbanski cites no
authority for the proposition that Kelly was required to note in his averment that the
promissory note had an allonge included. It was sufficient that Kelly averred that the note
was indorsed in blank. The indorsement in blank was in the allonge. This averment was
sufficient to demonstrate USB was a holder.
{¶ 15} As for the argument that Kelly should have observed that the assignment of
mortgage assigned the mortgage back to MERS, we also find this argument without merit.
The assignment of mortgage provides, in pertinent part:
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, Mortgage Electronic Registration Systems, Inc.,
as nominee for BNC Mortgage, Inc. A Delaware Corporation,
its successors and assigns * * * does hereby assign to U.S.
Bank National Association, as Trustee for BNC Mortgage Loan
Trust 2007-2, Mortgage Pass-Through Certificates, Series
2007-2 * * * all of its interest in that certain mortgage from
Robert L. Hendrix, an unmarried man and Rhonda C.
Wheeler, an unmarried woman to Mortgage Electronic
Registration Systems, Inc., as nominee for BNC Mortgage,
Inc. A Delaware Corporation, its successors and assigns, dated
January 26, 2007, recorded February 7, 2007.
(Emphasis added.) Although Urbanski does not develop his argument, he seems to
believe the above provision provides that MERS assigned to USB all of its interest in the
mortgage, and then USB transferred the mortgage back to MERS. Presumably, Urbanski
No. 13AP-520 7
bases his assertion on the "to Mortgage Electronic Registration Systems, Inc." language
italicized above. We disagree with Urbanski's reading. What the provision is indicating is
that MERS is transferring to USB all of its interest in the mortgage that Hendrix and
Wheeler had transferred "to" MERS previously. Therefore, this argument is without
merit.
{¶ 16} Urbanski also contends that an affidavit filed by Kelly in another
jurisdiction appears to have a signature with different characteristics. However, Urbanski
presents nothing beyond his speculation to support such an allegation. Besides being
unsupported by any legal authority, his demand that USB should have been required to
produce "wet ink" originals of Kelly's affidavit prior to summary judgment being granted
is also untenable, given Urbanski was free to conduct discovery and inspect such if he so
desired. Therefore, these arguments are without merit.
{¶ 17} Urbanski next contends that USB's request for admissions submitted to
appellee should have been deemed admitted by operation of Civ.R. 36(A)(1). Urbanski
submits the following timeline. Urbanski served his request for admissions upon USB on
September 12, 2012. On September 25, 2012, USB raised an issue that it did not have
authorization from Hendrix and Wheeler authorizing it to release information regarding
the loan. On October 15 and November 21, 2012, Urbanski submitted Hendrix's and
Wheeler's authorizations, respectively, to USB. On December 12, 2012, USB filed a
memorandum with the court indicating that it would provide responses to Urbanski's
discovery requests on or before December 31, 2012. Based upon USB's commitment to
provide discovery, the trial court found moot Urbanski's earlier motion to authorize
discovery. Because USB still did not provide discovery, Urbanski left a phone message
with USB's counsel regarding the matter on January 3, 2013. Urbanski claims that,
because USB failed to timely respond to his request for admissions, such should have
been deemed admitted.
{¶ 18} We disagree with Urbanski's contentions. Urbanski neglects some facts in
his recitation of the timeline. Urbanski subsequently filed a motion to compel on
January 8, 2013 in which he generally recited the same timeline as above. However, as
USB indicated in its notice of submission of discovery and memorandum contra
Urbanski's motion to compel, Urbanski failed to mention that USB's counsel responded to
No. 13AP-520 8
Urbanski's January 3, 2013 phone message on January 4, 2013, and informed him via
email that he was out of the office at the end of the year and was unable to work the
following week due to a severe illness. Urbanski also does not mention that USB
submitted the requested discovery on January 11, 2013, and Urbanski withdrew his
motion to compel discovery on January 14, 2013.
{¶ 19} In addressing Urbanski's argument that USB's failure to timely respond to
his request for admissions should constitute its admission that it had no interest in the
subject property, the trial court noted the failure of Urbanski to divulge to the court that
USB, in fact, submitted responses to Urbanski's request for admissions on January 11,
2013. The court questioned whether Urbanski and his counsel believed the court was "too
stupid to discover the truth." The court also found that Urbanski's attempt to "mislead"
the court was "dishonest at best" and "fraudulent at worst." The court then concluded that
Urbanski suffered no prejudice by the late submission and denied Urbanski's request that
USB be deemed to have admitted it had no interest in the property at issue. We agree with
the trial court's findings. Therefore, this argument is without merit.
{¶ 20} Urbanski next argues that the allonge included within the promissory note
was invalid for the following four reasons: (1) the allonge has a plainly discernible
stamped signature rather than an actual signature, and, thus, the actual authority of the
person utilizing the stamp has not been confirmed by appellee, (2) it appears the allonge
was prepared in advance of Hendrix's and Wheeler's signatures and in advance of the
promissory note being executed, (3) the allonge has a line that indicates the application
number, and such line is blank, suggesting that it was prepared prior to the execution of
the promissory note, and (4) the indorsement line of the allonge appears to have been
altered by an erasure or use of "white out," as there is an inconsistency between the
appearance of the indorsement line and the authorization line on the allonge where the
signature is stamped.
{¶ 21} In addressing these arguments, the trial court found that Urbanski
presented absolutely no evidence to support his speculation that the transfers of the note
and mortgage were not valid, while USB has presented evidence to support that it was the
proper holder of the note and mortgage and was entitled to enforce the note and
mortgage. We agree with the trial court that Urbanski's arguments are mere speculation
No. 13AP-520 9
and are insufficient to fend off USB's motion for summary judgment or to support his
own. It is well understood that using mere speculation to raise questions of material fact
is not enough to defeat a summary judgment motion, and mere speculation cannot be
used to support a motion for summary judgment. See Allen v. USA Parking Sys., Inc., 7th
Dist. No. 10 MA 175, 2011-Ohio-6642, ¶ 46, citing Allstate Ins. Co. v. Sears, 7th Dist. No.
06 BE 10, 2007-Ohio-4977, ¶ 74 (finding that mere speculation or possibility is not
enough to defeat a summary judgment motion); Poliseno v. Mitchell, 10th Dist. No.
09AP-1001, 2010-Ohio-2615, ¶ 26 (finding mere speculation is not sufficient to overcome
a motion for summary judgment), citing Whiteside v. Conroy, 10th Dist. No. 05AP-123,
2005-Ohio-5098, ¶ 66, citing Zacks v. Beck, 10th Dist. No. 04AP-1364, 2005-Ohio-4567,
¶ 29; Strahm v. Buckeye Pipe Line Co., L.P., 3d Dist. No. 1-10-60, 2011-Ohio-1171, ¶ 35
(finding that a court cannot grant summary judgment on mere speculation). Therefore,
we find Urbanski's arguments lack merit. For the foregoing reasons, Urbanski's
assignment of error is overruled.
{¶ 22} Accordingly, Urbanski's sole assignment of error is overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
TYACK and KLATT, JJ., concur.
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