U.S. Bank Natl. Assn. v. George , 2015 Ohio 4957 ( 2015 )

[Cite as U.S. Bank Natl. Assn. v. George, 2015-Ohio-4957.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
U.S. Bank National Association, :
as Trustee, Successor in Interest to
Wachovia Bank, National Association as :
Trustee for Wells Fargo Asset Securities
Corporation, Mortgage Pass-Through : No. 14AP-817
Certificates, Series 2003-D, (C.P.C. No. 12CV-13226)
:
Plaintiff-Appellee, (REGULAR CALENDAR)
:
v.
:
Douglas K. George et al.,
:
Defendants-Appellants,
:
Westbury Homeowners'
Association, Inc. et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on December 1, 2015
Thompson Hine LLP, Scott A. King and Terry W. Posey, Jr.,
for appellee.
McGookey Law Offices, LLC, Daniel L. McGookey and
Kathryn M. Eyster, for appellants.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} On October 19, 2012, plaintiff-appellee, U.S. Bank, National Association
("U.S. Bank"), as trustee, successor in interest to Wachovia Bank, National Association
("Wachovia"), as trustee for the Wells Fargo Asset Securities Corporation, mortgage pass-
through certificates, series 2003-D (the "trust"), filed this action against defendants-
appellants Douglas K. and Robin A. George, for the balance due on a promissory note, and
No. 14AP-817 2
to foreclose a mortgage against 7511 Windsor Drive, Dublin, Ohio 43016, which secured
repayment of the note. The Franklin County Court of Common Pleas granted summary
judgment for appellee, and in a single assignment of error appellants state:
The trial court erred in granting U.S. Bank's Motion for
Summary Judgment.
I. Facts and Procedural History
{¶ 2} On August 8, 2002, appellants executed the note and mortgage in favor of
M/I Financial Corp ("M/I Financial"). Douglas George lost a well-compensated position
of employment, and foreclosure proceedings were filed but terminated upon a loan
modification agreement. Appellants again suffered financial difficulties, and the current
action was filed.
{¶ 3} Attached to the complaint were copies of a note, a mortgage and three
assignments of the mortgage. The note in favor of M/I Financial contained two
indorsements and an allonge. The first indorsement was to Wells Fargo Home Mortgage,
Inc., and the second to Wachovia, "AS Trustee under the pooling and servicing agreement
dated * * * February 26, 2003." (Complaint, exhibit A, 5.) The allonge endorsed the note
to U.S. Bank as "successor in interest to Wachovia Bank * * * as trustee, by Wells Fargo
Bank, N.A. its attorney in fact." (Emphasis deleted.) (Complaint, exhibit A, 6.) Appellants
assert that appellee failed to establish that Wells Fargo Bank, N.A. was entitled to execute
the allonge, and disputes U.S. Bank as the holder of the note.
{¶ 4} The mortgage copy attached to the complaint was given to M/I Financial.
Two separate documents purported to assign the mortgage from M/I Financial to Wells
Fargo Home Mortgage, Inc., on August 8, 2002. The third assignment was made to U.S.
Bank on September 17, 2009 by "Wells Fargo Bank, N.A. successor by merger to Wells
Fargo Home Mortgage, Inc." (Complaint, exhibit E.) Appellants argue that there was no
proof that Wells Fargo Bank had authority to assign the mortgage on behalf of Wells
Fargo Home Mortgage, Inc., six years after the trust's closing date.
{¶ 5} On April 12, 2013, appellee filed an amended complaint also attaching the
loan modification agreement, and on September 25, 2013 filed its motion for summary
judgment. U.S. Bank submitted the September 12, 2013 affidavit of Megan A. Jones,
Wells Fargo Bank, N.A. vice president loan documentation, in which Jones stated: "At the
time of the filing of the complaint * * * and to date," U.S. Bank "directly or through an
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agent, has been in possession of the Promissory Note." (Sept. 25, 2013 Motion for
Summary Judgment, Jones Affidavit, ¶ 5.) Jones further stated in her affidavit that the
last payment was received on April 20, 2012, and Wells Fargo applied it to the December
2011 payment date. The account was "due and owing for the 01/01/2012 payment with
interest running from 12/01/2011." (Jones Affidavit, ¶ 6.) In addition, Jones stated in her
affidavit that "[a]ccording to Wells Fargo's business records, no subsequent payments to
bring the loan current have been made and the default on the loan has not been cured."
(Jones Affidavit, ¶ 7.) Jones then stated that the loan had been accelerated, making the
entire balance due. She identified the total amount due as $293,297.89: $261,694.38 in
principal, $12,639.53 in accrued interest, $3,302.88 in hazard insurance disbursements,
$15,401.10 in tax disbursements, and $265.00 for property inspections. Interest was
accruing at $19.02 per day.
{¶ 6} With Jones' affidavit, appellee included a copy of the purported note that is
not identical to the note attached to the complaint and the amended complaint, along
with copies of the mortgage and three assignments, an October 23, 2011 letter from the
Wells Fargo Home Mortgage Default Management Department expounding appellants'
default, and account data. In her affidavit, Jones attested to this documentation by
stating: "Attached as exhibits hereto are copies of the Note with any applicable
indorsements and the Mortgage with any applicable Assignments, a payment history and
the demand letter, redacted solely to protect any private, personal, financial information."
(Jones Affidavit, ¶ 9.)
{¶ 7} The copy of the note attached to Jones' affidavit contained the first
indorsement by M/I Financial to Wells Fargo Home Mortgage, Inc., but omitted the
further indorsement to Wachovia and the allonge bearing the indorsement to U.S. Bank.
Attempting to correct the discrepancy, on October 21, 2013, appellee filed a "motion to
incorporate" in which its counsel averred that "through advertence a full copy of the
Promissory Note, which was attached to the Complaint, was not attached to Plaintiff's
Motion for Summary Judgment." Appellee requested an order incorporating the full
copy. While counsel has stated that the full copy was attached to the motion, we have not
found this attachment in the record. The motion to incorporate was granted the same day
it was filed, and over appellants' opposition, the trial court granted appellee's motion for
summary judgment.
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II. Standard of Review
{¶ 8} To be entitled to summary judgment the moving party must demonstrate:
"(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." UAP-Columbus JV326132 v. Young, 10th Dist. No.
14AP-422, 2014-Ohio-4590, ¶ 11, citing Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54,
2010-Ohio-4505, ¶ 29, and Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-
5584, ¶ 29. Our review of the trial court's ruling on the motion for summary judgment is
de novo. Hudson at ¶ 29. The appellate court conducts an independent review, without
deference to the trial court's determination. Young at ¶ 11, citing Zurz v. 770 W. Broad
AGA, L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.), and White v. Westfall,
183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
III. Appellee's Standing to Enforce the Note/Sufficiency of Affidavit on
Motion for Summary Judgment
{¶ 9} The parties do not dispute the note at issue being negotiable under R.C.
1303.03(A), and therefore governed by R.C. Chapter 1303, Ohio's version of Article 3 of
the Uniform Commercial Code. See Young at ¶ 27; Bank of Am., N.A. v. Pasqualone, 10th
Dist. No. 13AP-87, 2013-Ohio-5795, ¶ 29-30. R.C. 1303.31(A) identifies the following
"persons" entitled to enforce a negotiable instrument:
(1) The holder of the instrument;
(2) A nonholder in possession of the instrument who has the
rights of a holder;
(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.
According to R.C. 1301.01(T)(1)(a) and (b) (Repealed),1 which was in effect when the note
was made, the " '[h]older' with respect to a negotiable instrument means either of the
1R.C. 1301.01 was repealed by 2011 Am.H.B. No. 9, effective June 29, 2011, amending and renumbering that
section at R.C. 1301.201. The new section applies only to transactions entered on or after June 29, 2011, and
we therefore cite R.C. 1301.01. The definition of "[h]older" in R.C. 1301.201(B)(21)(a)—"[t]he person in
possession of a negotiable instrument that is payable either to bearer or to an identified person that is the
No. 14AP-817 5
following: (a) If the instrument is payable to the bearer, a person who is in possession of
the instrument; (b) If the instrument is payable to an identified person, the identified
person when in possession of the instrument." A party commencing litigation must have
standing to sue in order to invoke the jurisdiction of the common pleas court. Fed. Home
Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 20.
A. Distinguishing between Appellee's Claims on the Note and the
Mortgage
{¶ 10} Because the trial court granted summary judgment on both the note and the
mortgage, it is worthwhile to examine the differences between the available remedies
arising from each to the person entitled to enforce them. Appellee claims to be both a
holder of the note on which a default occurred and the person entitled to enforce the note,
in addition to having an interest in the mortgage on the date it filed its claims under the
note and for foreclosure.2 Fannie Mae v. Hicks, 8th Dist. No. 102079, 2015-Ohio-1955,
¶ 32-33, is instructive:
A foreclosure proceeding is the enforcement of a debt
obligation. Wilborn v. Bank One Corp., 121 Ohio St.3d 546,
2009-Ohio-306, 906 N.E.2d 396. As a result, foreclosure in
Ohio is a two-step process. First Knox Natl. Bank v.
Peterson, 5th Dist. Knox No. 08CA28, 2009-Ohio-5096,
2009 WL 3086583, ¶ 18. Only after the court determines
liability on the underlying obligation can it proceed to the
foreclosure analysis under the mortgage. Id. Thus, a
determination of liability under the note is a prerequisite to
enforcement of the mortgage itself because a mortgage is but
an incident to the debt it secures. Kernohan v. Manss, 53
Ohio St. 118, 133, 41 N.E. 258 (1895). As stated by the United
States Supreme Court, "[t]he note and the mortgage are
inseparable; the former essential, the latter incident."
person in possession"—is substantially similar to that in R.C. 1301.01(T)(1)(a) and (b). Flagstar Bank, F.S.B.
v. Richison, 3d Dist. No. 14-12-01, 2012-Ohio-3198, ¶ 15, fn. 1; Pasqualone at ¶ 32, fn. 9.
2 Contrary to our holding in FV-I, Inc. v. Lackey, 10th Dist. No. 13AP-983, 2014-Ohio-4944, that in order
to have standing to commence a foreclosure action, the plaintiff must prove it was both the holder of the
note and had an interest in the mortgage on the date it filed the complaint, other courts have found that a
party may establish standing as holder of the note or as assignee of the mortgage at the time the complaint
is filed. E.g., CitiMortgage, Inc. v. Patterson, 8th Dist. No. 98360, 2012-Ohio-5894, ¶ 21. The issue had
been certified to the Supreme Court of Ohio for resolution. SRMOF 2009-1 Trust v. Lewis, 138 Ohio St.3d
1492, 2014-Ohio-2021. However, the Supreme Court decided to dismiss the conflict on the issue of
standing as having been improvidently certified. SRMOF 2009-1 Trust v. Lewis, 142 Ohio St.3d 369,
2015-Ohio-1494.
No. 14AP-817 6
Carpenter v. Longan, 83 U.S. 271, 274, 16 Wall. 271, 21 L.Ed.
313 (1872).
In other words, "[a] mortgage may be enforced only by * * * a
person who is entitled to enforce the obligation the mortgage
secures." Restatement (Third) of Property: Mortgages, §
5.4(C) (1997). See also In Re Dorsey, 13, 8036 (B.A.P. 6th
Cir.2014). To find otherwise would promote the separation
of the note and mortgage and potentially subject the
defaulting party to claims from multiple parties.
{¶ 11} Applying these principles to appellee's motion for summary judgment, the
distinction should be made that, the first part of appellee's action, concerning the note, is
brought according to law and is based in contract, while the second, concerning the
mortgage, is in equity:
Once it has been determined as a matter of law that a default
on the obligation secured by the mortgage has occurred, the
court must then consider the equities to determine if
foreclosure is the appropriate remedy. See First Knox Natl.
Bank v. Peterson, 5th Dist. No. 08CA28, 2009-Ohio-5096,
2009 WL 3086583, ¶ 18, citing Rosselot v. Heimbrock (1988),
54 Ohio App.3d 103, 105-106, 561 N.E.2d 555. Moreover,
because foreclosure is equitable relief, "the simple assertion of
the elements of foreclosure does not require, as a matter of
law, the remedy of foreclosure." See First Natl. Bank of Am. v.
Pendergrass, 6th Dist. No. E-08-048, 2009-Ohio-3208, 2009
WL 1865127,¶ 22.
PHH Mtge. Corp. v. Barker, 190 Ohio App.3d 71, 2010-Ohio-5061, ¶ 35 (3d Dist.)
{¶ 12} Consistent with the legal differences between the note and mortgage, this
court has explicitly recognized that foreclosure is "a civil action in equity." WesBanco
Bank, Inc. v. Ettayem, 10th Dist. No. 14AP-452, 2015-Ohio-1230, ¶ 28. In BAC Home
Loans Servicing, LP v. Mowery Properties, Ltd., 10th Dist. No. 10AP-396, 2011-Ohio-
1596, we further explained the difference between enforcing a note and enforcing a
mortgage in a probate context: "the right of action of a 'mortgagee or legal holder of a note
is independent of the remedy given him by filing his claim in the probate court' because a
foreclosure proceeding 'is not one against an estate, nor is it one in personam,' but,
rather, 'is in the nature of a proceeding in rem to enforce certain security specially set
apart for the indemnity of the holder of the note.' " (Emphasis sic.) Id. at ¶ 17, quoting
Waughop v. Bartlett, 165 Ill. 124, 129-30 (1896); Fin. Freedom v. Kirgis, 377 Ill.App.3d
No. 14AP-817 7
107 (1st Dist.2007). See also Weaver v. Bank of New York Mellon, 10th Dist. No. 11AP-
1065, 2012-Ohio-4373, ¶ 15.
{¶ 13} Even though foreclosure has been codified in R.C. 2323.07, it remains an
equitable proceeding:
[T]he statute codified the remedy [of foreclosure] recognized
in equity * * *.
[F]oreclosure procedures are now based on statute and
equity. For example, the equitable right of redemption exists
concurrently with and independent of the statutory right of
redemption. However, we find no authority—in Supreme
Court precedent or statute—that would permit a trial court to
employ a foreclosure procedure that excludes a judicial sale
from its order.
Wells Fargo Bank, N.A. v. Young, 2d Dist. No. 2009 CA 12, 2011-Ohio-122, ¶ 45-46. The
nature of foreclosure as an equitable remedy is not extinguished with the enactment of a
codifying statute that governs its procedures.
It is well-recognized that actions in foreclosure arise in
equity. See Kerr [v. Lydecker, 51 Ohio St. 240, 248 (1894)];
[Union Trust Co. v.] Lessovitz [122 Ohio St. 406 (1930)],
(concluding that the right of subrogation and priority of liens
were chancery issues for purposes of Section 6, Article IV, of
the Ohio Constitution of 1912). Moreover, civil actions that
were recognized as equitable actions before the adoption of
the Code of Civil Procedure remained equitable in nature
after the General Assembly enacted statutes providing an
equitable remedy. See Wagner v. Armstrong (1916), 93 Ohio
St. 443, 113 N.E. 397 (holding that statutory claim for
partition was appealable as chancery case).
Of critical importance is whether the Ohio legislature, in
enacting statutes governing foreclosure, intended the
statutes to provide an exclusive procedure for foreclosure or,
instead, meant the statutes to be merely cumulative of
common law equitable remedies.
" 'Whether a particular statutory remedy is exclusive or erely
cumulative, is a question of construction and interpretation,
depending upon the intent of the Legislature as manifested
in the terms and provisions of the statute.
" 'In some cases, a remedy prescribed by statu[t]e is regarded
as exclusive. Indeed, in particular cases, it may appear, either
expressly or by necessary implication, that the remedy
No. 14AP-817 8
provided therein is intended to be exclusive. This is true
where a new remedy or mode of procedure is authorized by a
new statute, and the new procedure is inconsistent with the
former one. In such cases, the person injured must confine
himself to the statutory remedy. However, an existing
remedy is not necessarily taken away by a statute which
simply provides an additional remedy. It may appear that the
remedy afforded by a particular statute is not intended to be
exclusive, but cumulative with respect to other remedies of
the party. Indeed, an existing remedy, particularly one which
is long established, is not regarded as taken away by statute,
except by direct or express enactment, or necessary
implication from language showing, in a clear manner, that
the statutory remedy was intended to be exclusive. Hence,
where a new remedy is provided by statute for an existing
right, and it neither denies an existing remedy nor is
incompatible with its continued existence, the new remedy is
regarded as cumulative, and the person seeking redress may
adopt and pursue either remedy at his option.' 50 American
Jurisprudence, page 590, Section 595." Wachendorf v.
Shaver (1948), 149 Ohio St. 231, 242-43, 78 N.E.2d 370.
Young, 2011-Ohio-122, at ¶ 40-43.
{¶ 14} Here, appellee claims to be the holder and person entitled to enforce both
the note and the mortgage executed by appellants upon the purchase of their home. As
such, appellee must prove both of its claims whether in a single action or in a series of
actions. If appellee achieves satisfaction of its claim under the note, that is, in law, a court
may proceed in equity as against the property that secures that repayment of the note.
Barker. In the matter under review, the trial court granted summary judgment in both
law and equity, ostensibly permitting foreclosure to occur by denying appellants'
challenge to appellee's legal standing to enforce the note.
B. Review of Summary Judgment on Appellee's Attempts to Establish
Its Claims on the Note
{¶ 15} We have previously taken judicial notice that "during the past two decades
it has become a common practice of the mortgage lending and banking industries to
resell mortgage loan packages, * * * to assign to service companies other than the
original mortgagees the collection of mortgage payments and even the bringing of
foreclosure actions, and to bundle repurchased mortgage packages into derivatives for
purchase by other investors." State v. Orms, 10th Dist. No. 14AP-750, 2015-Ohio-2870,
No. 14AP-817 9
¶ 14. As a result, litigation surrounding collecting debt and foreclosing on financed real
estate has incorporated arguments concerning the law of commercial paper and the
Uniform Commercial Code as codified in Ohio in R.C. Chapter 13. We have even made
distinctions between notes subject to the Uniform Commercial Code and those that are
not, in order to determine whether standing exists by a party not in privity, to challenge
the transfer of a note or the assignment of a mortgage. See, e.g., Pasqualone.
{¶ 16} In the trial court, in response to appellee's motion for summary judgment,
appellants asserted that appellee did not prove standing to enforce the note because the
evidence presented on its motion for summary judgment did not establish that appellee
had bought and had possession of the note. Appellants argue that different copies of the
note—the first attached to the complaint and amended complaint, and the second
attached to the motion for summary judgment—present genuine issues of material fact to
preclude summary judgment. We find this point to be well-taken, and we depart from the
conclusion of the trial court.
{¶ 17} Appellee maintains that, while Jones' affidavit did not include the allonges
with the indorsement from M/I Financial to Wells Fargo, there was nothing to rebut
appellee's claim that this was a mere clerical error. The trial court held that appellee's
motion to incorporate into the Jones affidavit the note as attached to the pleadings
corrected the error. The trial court further relied on appellee's production of what was
represented as the original note at the Civ.R. 30(B)(6) deposition of its representative,
John McCray, with the indorsements and allonges, as in the copies attached to its
pleadings. Here, we believe that appellants' equitable argument respecting the greater
severity of the harm to appellants than to appellee becomes pertinent. In this context, we
find it particularly unreasonable that summary judgment should be granted without
appellee's compliance with the Ohio Rules of Civil Procedure. A plaintiff moving for
summary judgment in a foreclosure action must submit evidentiary-quality materials
establishing:
(1) that the plaintiff is the holder of the note and mortgage, or
is a party entitled to enforce the instrument; (2) if the plaintiff
is not the original mortgagee, the chain of assignments and
transfers; (3) that the mortgagor is in default; (4) that all
conditions precedent have been met; and (5) the amount of
principal and interest due.
No. 14AP-817 10
Regions Bank v. Seimer, 10th Dist. No. 13AP-542, 2014-Ohio-95, ¶ 19, quoting Deutsche
Bank Natl. Trust Co. v. Najar, 8th Dist. No. 98502, 2013-Ohio-1657, ¶ 17.
{¶ 18} Appellee concedes that the documents attached to Jones' affidavit would not
qualify it as a holder insofar as they did not include the indorsements from Wells Fargo
Home Mortgage, Inc. to Wachovia and from Wachovia to U.S. Bank, and, thus, leaving the
note still payable to Wells Fargo Home Mortgage, Inc. Appellee's "motion to incorporate"
did not include a further affidavit explaining the inconsistencies between the note
attached to the complaint and the alleged incomplete documentation submitted with
appellee's motion. In Najar, the foreclosing bank was able to explain by affidavit the
inconsistencies between the note produced in the complaint and the note attached to its
motion for summary judgment. Likewise, it was incumbent on appellee here to support
its motion with facts adduced from evidentiary-quality materials, beyond mere argument
that, as in Najar, the bank mistakenly attached the wrong copy of the note.
{¶ 19} We distinguished Najar in FV-I, Inc. v. Lackey, 10th Dist. No. 13AP-983,
2014-Ohio-4944, where the plaintiff provided two versions of the note, each bearing
different indorsements. The version attached to the original complaint included an
allonge bearing an undated indorsement from PNC Bank, N.A., as successor by merger to
First Franklin, the original lender, to the plaintiff. The second version, filed with the trial
court as an amended exhibit to the original complaint and as an exhibit to the amended
complaint, did not have an allonge but had two undated indorsements stamped directly
on the note below the signature area on the last page.
{¶ 20} In Lackey, unlike Najar, the plaintiff did not offer any explanation of the
different versions of the note. The affidavit in support of the motion for summary
judgment contained the attestation that the plaintiff had possession of the note and
mortgage prior to the filing of the complaint and addressed the assignment history of the
mortgage, but it failed to address the two versions of the note, which contained different
indorsements. We held: "Absent any explanation for the discrepancy between the two
versions of the Note, and construing the evidence in favor of appellant as the party
opposing summary judgment, it appears that there is a genuine issue of material fact as to
whether appellee was entitled to enforce the Note." Lackey at ¶ 18. Accord U.S. Bank,
N.A. v. McGinn, 6th Dist. No. S-12-004, 2013-Ohio-8, ¶ 22-26 (difference between notes
attached to complaint and to motion for summary judgment called into question whether
No. 14AP-817 11
U.S. Bank actually possessed the original note prior to filing the complaint and should
have precluded summary judgment for bank); Deutsche Bank Natl. Trust Co. v. Holden,
9th Dist. No. 26970, 2014-Ohio-1333, ¶ 15 (copy of note, submitted with summary
judgment motion, containing original lender's undated blank endorsement not included
in copy attached to foreclosure complaint posed genuine issue of material fact as to
whether plaintiff was entitled to enforce note).
{¶ 21} In U.S. Bank Natl. Assn. v. Lavelle, 8th Dist. No. 101729, 2015-Ohio-1307,
the Eighth District also distinguished Najar on this very point. Attached to the bank's
second amended complaint was a copy of the note which contained one indorsement
which had been executed by a person who was not the same as the one appearing on the
corresponding indorsement which was attached to the original complaint and to the
bank's motion for summary judgment. While the bank contended that the variances were
immaterial, for purposes of summary judgment, an evidentiary-quality explanation for
the inconsistent versions of the note remained wanting. Id. at ¶ 21.
{¶ 22} Because it is the note that creates the debt, and not the mortgage, unless
and until the right to enforce the original note has been established, there is no basis for
foreclosure. "Under Ohio common law, where a promissory note is secured by a
mortgage, the note is evidence of the debt and the mortgage is a mere incident of the
debt." U.S. Bank Natl. Assn. v. Gray, 10th Dist. No. 12AP-953, 2013-Ohio-3340, ¶ 32,
citing Edgar v. Haines, 109 Ohio St. 159, 164 (1923), and Kernohan v. Manss, 53 Ohio St.
118, 133 (1895); Pasqualone at ¶ 38.
{¶ 23} The copy of the note attached to Jones' affidavit did not establish appellee
as the holder. Notwithstanding appellee's "motion to incorporate" a copy of the note
attached to its pleadings that it claimed comports with the original note alleged to have
been produced at McCray's deposition, there was no properly supported motion for
summary judgment that complied with Civ.R. 56(C) and (E). Appellee failed to meet its
burden to establish the chain of assignments and transfers necessary to prove that it was
the person entitled to enforce the note, let alone foreclose on property secured by the debt
created by the note. As in Lackey, McGinn, Holden, and Lavelle, genuine issues of
material fact remain, and we reverse the trial court's summary judgment granted in favor
of appellee.
No. 14AP-817 12
{¶ 24} Because we have reversed the trial court's summary judgment on issues
concerning the note and appellants' challenge to appellee's standing to enforce the note,
we necessarily overrule our prior holding in LSF6 Mercury REO Invests. Trust Series
2008-1 v. Locke, 10th Dist. No. 11AP-757, 2012-Ohio-4499. In Locke, we held that the
makers of notes and mortgages are without standing to challenge the validity of transfers
or assignments to which they were not parties. Shortly after its release, we limited Locke's
application by way of our decision in Pasqualone to the extent that "in cases where R.C.
Chapter 1303 applies, a debtor may challenge the assignment of a note (by negotiation or
transfer) if such challenge fits the criteria of a denial, defense or claim in recoupment as
outlined in R.C. 1303.36 or 1303.35." (Footnotes deleted.) Pasqualone at ¶ 35.
{¶ 25} We believe that at least one of the underlying cases relied on by the court in
Locke has been clarified to the point that its premise as we surmised it no longer supports
what we previously held in Locke denying standing to non-privity challengers of note and
mortgage transfers and assignments. We thus extend our holding in Pasqualone to clarify
that standing broadly exists for persons to challenge the validity of the transfer of a note3
or assignment of the mortgage, whether or not in privity with the person entitled to
enforce the note or mortgage, regardless of whether or not the note has been negotiated
and transferred under R.C. Chapter 13, Ohio's codification of the Uniform Commercial
Code.
{¶ 26} " ' "Where the party does not rely on any specific statute authorizing
invocation of the judicial process, the question of standing depends on whether the party
has alleged * * * a 'personal stake in the outcome of the controversy.' " ' " Schwartzwald
at ¶ 21, quoting Cleveland v. Shaker Hts., 30 Ohio St.3d 49, 51 (1987), quoting
Middletown v. Ferguson, 25 Ohio St.3d 71, 75 (1986), quoting Sierra Club v. Morton, 405
U.S. 727, 731-32 (1972), quoting Baker v. Carr, 369 U.S. 186, 204 (1962). The maker of a
3 Under Ohio law, the right to enforce a note cannot be assigned; rather, the note must be negotiated in
conformity with Ohio's version of the Uniform Commercial Code. In re Wells, 407 B.R. 873, 880 (N.D.Ohio
2009). See also HSBC Bank USA, Natl. Assn. v. Surrarrer, 8th Dist. No. 100039, 2013-Ohio-5594, ¶ 17 (in
order for one other than the payee to enforce the note, the note must be negotiated to another who then
becomes the holder of the note). An attempt to assign a note creates a claim to ownership, but does not
transfer the right to enforce the note. Wells at 880. An assignment of a note may be by negotiation, pursuant
to R.C. 1303.21, or transfer, pursuant to R.C. 1303.22. "Negotiation" requires transfer of possession of the
instrument. R.C. 1303.21(A). The "transfer" of an instrument requires physical delivery of the note "for the
purpose of giving to the person receiving delivery the right to enforce the instrument." R.C. 1303.22(A).
Wells Fargo Bank, N.A. v. Byers, 10th Dist. No. 13AP-767, 2014-Ohio-3303, ¶ 16.
No. 14AP-817 13
note or mortgagor who is facing enforcement at law on the note or enforcement in equity
on the mortgage has a personal stake in challenging whether a person claiming to be
entitled to enforce such a note or a mortgage has been duly transferred or assigned rights
under either or both instruments, regardless of whether or not the challenger is in privity
with the person claiming the right to enforce.
{¶ 27} Locke's holding is based in part on a line of federal court decisions4 that,
even since we decided Pasqualone, has been modified by the Sixth Circuit Court of
Appeals. In Slorp v. Lerner, Sampson & Rothfuss, 587 Fed.Appx. 249, 254-56 (6th Cir.
2014), the United States Sixth Circuit Court of Appeals held:
[Slorp] attributes his injuries to the improper foreclosure
litigation. According to the complaint, [defendant] Bank of
America (through LSR) filed a foreclosure action against Slorp
despite its lack of interest in the mortgage; the defendants
misled the trial court by fraudulently misrepresenting Bank of
America's interest in the suit; and Slorp incurred damages
when he was compelled to defend his interests. If Bank of
America had no right to file the foreclosure action, it makes no
difference whether Slorp previously had defaulted on his
mortgage. * * * [T]he district court erred when it held
otherwise.
***
Much of the district court's analysis was taken from Livonia
Properties Holdings, LLC v. 12840-12976 Farmington Road
Holdings, LLC, [717 F.Supp.2d 724 (E.D.Mich.2010), aff'd,
399 Fed.Appx. 97 (6th Cir.2010)] where we held that a
homeowner did not have standing to challenge the validity of
a home-loan assignment in an action contesting a foreclosure.
399 Fed.Appx. 97, 102 (6th Cir.2010).
We analyze the district court's holding in more detail than
might ordinarily be necessary because our Livonia Properties
opinion has confounded some courts and litigants, see, e.g.,
Etts v. Deutsche Bank Nat'l Trust Co., No. 13-11588, 2014 WL
645358, at *4 (E.D.Mich. Feb. 19, 2014) * * *.
The district court held, and the defendants now maintain, that
Slorp lacked standing to assert his claims because an
individual who is not a party to an assignment may not attack
the assignment's validity. We differ with this interpretation of
4 See, e.g., Livonia Properties Holdings, L.L.C. v. 12840-12976 Farmington Rd. Holdings, L.L.C., 717
F.Supp.2d 724 (E.D.Mich.2010), aff'd, 399 Fed.Appx. 97 (6th Cir.2010).
No. 14AP-817 14
Livonia Properties. The sweeping rule that the district court
extrapolated from Livonia Properties dwarfs our actual
holding in that case.
(Footnote deleted.) On summary judgment or otherwise, it is the movant's burden to
establish the chain of transfers and assignments, if it is not the original mortgagee, and
this is well-established in the law. Seimer at ¶ 19. That the mortgagor may not be a party
or in privity to a party to an assignment contract should not operate to diminish in any
way that burden. See Slorp at 255 ("a non-party homeowner may challenge the validity of
an assignment to establish the assignee's lack of title, among other defects"). Thus, we
clarify governing case law and overrule our previous holding in Locke, fully restoring the
burden placed on the person asserting entitlement to enforce the note or mortgage.
Accordingly, the maker of the note or mortgage has standing to challenge their
enforcement against the maker, even if not a party in privity to the particular transfer or
assignment challenged.
{¶ 28} Whether or not appellants had an opportunity to object to the "motion to
incorporate" the assertedly "full copy" of the note into its motion papers, appellee did not
meet its burden to demonstrate an absence of a dispute regarding its status as holder of
the note and mortgages, and therefore its standing to bring the action on the note and the
foreclosure action on the mortgage. See U.S. Bank, N.A. v. Richards, 189 Ohio App.3d
276, 2010-Ohio-3981, ¶ 17 (9th Dist.) ("the copy of the promissory note attached to U.S.
Bank's renewed motion for summary judgment was not incorporated into an affidavit,
and thus it was not appropriately considered as evidence under Civ.R. 56"). We find no
rule in the Ohio Rules of Civil Procedure that governs or authorizes a "motion to
incorporate"; and such a purported mechanism does not suffice as an alternative to
providing a court with evidentiary-quality materials that comport with Civ.R. 56,
especially in light of the undeniable harm to the maker of the note and the mortgagor in
residential foreclosure. See U.S. Bank, N.A. v. Bryant, 12th Dist. No. CA2012-12-266,
2013-Ohio-3993, ¶ 11. "There was no evidence contemplated by Civ.R. 56 properly before
the court demonstrating that U.S. Bank was the owner and holder of the promissory note
and mortgage deed." Richards at ¶ 17.
{¶ 29} In her affidavit, Jones states that she is familiar with business records
maintained by Wells Fargo Bank, N.A., as servicing agent for U.S. Bank for the purpose of
servicing mortgage loans. Further, in addition to attaching to her affidavit a copy of the
No. 14AP-817 15
note that lacks both the indorsement to Wachovia and the allonge containing the
indorsement to U.S. Bank, she does not state that she has ever examined the originals or
copies of the complete and current promissory note which arguably shows that appellee is
holder of the note. In that respect, the affidavit does not meet the standard of personal
knowledge that any of the documents submitted with the motion were accurate copies of
the originals and that those records were kept in the ordinary course of business. See
Wright-Patt Credit Union, Inc. v. Byington, 6th Dist. No. E-12-002, 2013-Ohio-3963, ¶ 17
("because appellee failed to present the court with evidentiary-quality material in support
of its assertion that it was the current holder of the note and mortgage at issue, a genuine
issue of material fact remains regarding whether appellee has standing in this foreclosure
action and the lower court erred in granting appellee summary judgment").
{¶ 30} Additionally, at his deposition, McCray could not explain why the copy of
the note attached to Jones' affidavit differed from the copy attached to appellee's
amended complaint, and he could not answer as to when the later indorsement and
allonge missing from the Jones affidavit were made. He could not identify where the
original note was kept since its inception, and he thought that Wells Fargo, rather than
U.S. Bank, was holder of the note. These facts give us even less confidence in the trial
court's finding of a lack of dispute as to facts material to judgment.
{¶ 31} Because we have found that Jones' affidavit did not establish that she had
personal knowledge of the documents and transactions in question, any attempt to
incorporate by reference in a subsequent, unverified motion an allegedly complete and
correct note left genuine issues of material fact requiring denial of summary judgment.
See Bank of Am., N.A. v. Loya, 9th Dist. No. 26973, 2014-Ohio-2750, ¶ 12; Bank of New
York Mellon v. Villalba, 9th Dist. No. 26709, 2014-Ohio-4351, ¶ 16.
{¶ 32} We agree with the Eighth District's pronouncement in Lavelle that to
disregard the contradicting copies of the note without proper authentication of current
documentation and explanation of the discrepancies, "would be unjust and would ask this
court to [ignore] the actions of financial institutions who have an obligation to conform
with acceptable business practices and establish an unbroken chain of assignments prior
to instituting a foreclosure action." Id. at ¶ 22. These inconsistencies as a matter of law
effectively rebut appellee's burden of proof under Civ.R. 56(C).
No. 14AP-817 16
{¶ 33} Finally, the defects in Jones' affidavit also forestall consideration of
appellee's argument that it should have standing to enforce the note as a non-holder in
possession. Appellee's claim to be in possession of the note and entitled to enforce it is
supported in Jones' affidavit only by the averment that appellee "is either the original
payee of the Promissory Note or the Promissory Note has been duly indorsed." (Jones
Affidavit, ¶ 5.) Appellee is not the original payee, and the affidavit and its attachments fall
far short of showing that the note has been duly endorsed and transferred to appellee.
{¶ 34} The unexplained discrepancies between the copy of the note appended to
appellee's pleadings and that attached to the affidavit in support of summary judgment
leave a genuine issue of material fact requiring denial of summary judgment, even on the
assertion of appellee being the person entitled to enforce the note as a non-holder in
possession. See Richards at ¶ 20; Everhome Mtge. Co. v. Rowland, 10th Dist. No. 07AP-
615, 2008-Ohio-1282, ¶ 12; First Union Natl. Bank v. Hufford, 146 Ohio App.3d 673, 679-
80 (3d Dist.2001). Without duly attested documents or other competent evidence, we
cannot infer the transfers of the note and assignments of the mortgage as matters of fact
and therefore cannot affirm summary judgment or any separate but related judgment in
foreclosure. Because of these findings, other issues argued by the parties are deemed
moot, and we decline to address them.
IV. Conclusion
{¶ 35} We sustain appellants' sole assignment of error for the reasons stated in this
decision and reverse the judgment of the Franklin County Court of Common Pleas,
thereby denying appellee's motion for summary judgment and remand this case to the
trial court with instructions to proceed in accordance with this decision.
Judgment reversed and
cause remanded with instructions.
HORTON, J., concurs.
DORRIAN, J., concurs in judgment only.
DORRIAN, J., concurring in judgment only.
{¶ 36} I concur in the majority's judgment only because I agree there is a genuine
issue of material fact regarding whether U.S. Bank is the person entitled to enforce the
Georges' note. I respectfully write separately to explain my disagreement from the
No. 14AP-817 17
majority opinion's reasoning and also to clarify the confusion in the law that is reflected in
the majority opinion.
{¶ 37} First, I must distinguish between the elements a plaintiff must prove to
prevail on a foreclosure action and the requirements for establishing standing to file a
foreclosure action. To prove entitlement to foreclosure, a plaintiff must prove both that it
is the person entitled to enforce the note and a holder of the mortgage (along with other
elements).5 Deutsche Bank Natl. Trust Co. v. Thomas, 10th Dist. No. 14AP-809, 2015-
Ohio-4037, ¶ 9, 19; Regions Bank v. Seimer, 10th Dist. No. 13AP-542, 2014-Ohio-95, ¶ 19;
Bank of New York Mellon v. Rankin, 10th Dist. No. 12AP-808, 2013-Ohio-2774, ¶ 23. On
the other hand, to prove standing to assert a foreclosure action, a plaintiff must show an
interest in the note or mortgage. This "or" rule emerged from Fed. Home Loan Mtge.
Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. There, the Supreme Court of
Ohio concluded that the plaintiff did not have standing because "it failed to establish an
interest in the note or mortgage at the time it filed suit." (Emphasis added.) Id. at ¶ 28.
Our court has construed this language to mean that an interest in either the note or
mortgage is sufficient to establish standing. See Wells Fargo Bank, N.A. v. Parrish, 10th
Dist. No. 15AP-243, 2015-Ohio-4045, ¶ 14; UAP-Columbus JV326132 v. Young, 10th Dist.
No. 14AP-422, 2014-Ohio-4590, ¶ 26; Bank of New York Mellon v. Williams, 10th Dist.
No. 13AP-499, 2014-Ohio-3737, ¶ 13; Wells Fargo Bank, N.A. v. Byers, 10th Dist. No.
13AP-767, 2014-Ohio-3303, ¶ 12; U.S. Bank Natl. Assn. v. Gray, 10th Dist. No. 12AP-953,
2013-Ohio-3340, ¶ 27; but see JPMorgan Chase Bank v. Allton, 10th Dist. No. 14AP-228,
2014-Ohio-3742, ¶ 12; Wells Fargo Bank, N.A. v. Odita, 10th Dist. No. 13AP-663, 2014-
Ohio-2540, ¶ 9; Fifth Third Mtge. Co. v. Salahuddin, 10th Dist. No. 13AP-945, 2014-
Ohio-3304, ¶ 15; Fidelity Tax, L.L.C. v. Hall, 10th Dist. No. 12AP-923, 2013-Ohio-3165,
¶ 17.6
5 By invoking the doctrine of equitable assignment, a plaintiff may establish that it is a holder of the
mortgage by showing that it is the holder of the note. U.S. Bank Natl. Assn. v. Gray, 10th Dist. No. 12AP-
953, 2013-Ohio-3340, ¶ 32-34. However, the existence of the doctrine of equitable assignment does not
change the requirements necessary to prevail on the merits in a foreclosure action—a bank must prove the
requisite interest in the note and mortgage.
6 In the second footnote, the majority opinion contends that we held in FV-I, Inc. v. Lackey, 10th Dist. No.
13AP-983, 2014-Ohio-4944, that a plaintiff must prove an interest in both the note and mortgage to
demonstrate standing. Lackey, however, addressed whether a plaintiff established the merits of its
foreclosure action at the summary judgment stage. Standing was not at issue. Thus, Lackey appropriately
applied the law that, to prevail on the merits of its claims, a plaintiff "must demonstrate that it was entitled
to enforce the note and had an interest in the mortgage." Id. at ¶ 15. The majority opinion misconstrues
Lackey by suggesting it sets forth requirements for standing.
No. 14AP-817 18
{¶ 38} Second, I also question the majority opinion's suggestion that R.C. Chapter
1303, Ohio's version of Article 3 of the Uniform Commercial Code, applies to notes
secured by mortgages because banks securitize mortgage loans. The majority opinion
relies on judicial notice, first taken by the majority in State v. Orms, 10th Dist. No. 14AP-
750, 2015-Ohio-2870, to recognize the practice of securitization. In Orms, I dissented
from that use of judicial notice. Ohio courts apply R.C. Chapter 1303 to notes secured by
mortgages because such notes generally qualify as negotiable instruments, not because
the notes (along with the associated mortgages) may have been pooled for sale as
securities. See Bank of Am., N.A. v. Pasqualone, 10th Dist. No. 13AP-87, 2013-Ohio-
5795, ¶ 27-30.
{¶ 39} Turning to the review in this case, I agree with the majority opinion's
conclusion that a question of fact exists regarding whether U.S. Bank is the person
entitled to enforce the Georges' note. Under Ohio law, a bank cannot prevail in a
foreclosure action unless it first establishes itself as the person entitled to enforce the note
that accompanies the mortgage. Thomas at ¶ 9, 19; Seimer at ¶ 19; Rankin at ¶ 23. U.S.
Bank argues that it is the person entitled to enforce because it is the holder of the note.
U.S. Bank contends that it established its status as the holder by proving that it possesses
the Georges' note, which contains a chain of special endorsements that ends with a special
endorsement to it.
{¶ 40} To prove its contention, U.S. Bank appended to its motion for summary
judgment the affidavit of Megan A. Jones, vice president of loan documentation for Wells
Fargo Bank, N.A. (the servicing agent for the Georges' loan). Jones authenticated the note
attached to her affidavit as the Georges' note "with any applicable indorsements." (Jones
affidavit, ¶ 9.) That note, however, includes only one special indorsement—the
indorsement from the original lender, M/I Financial Corp., to Wells Fargo Home
Mortgage, Inc.
{¶ 41} Approximately one month after filing for summary judgment, U.S. Bank
moved the trial court for an order "incorporating a full copy of the Promissory Note to the
Motion for Summary Judgment." (Oct. 21, 2013 Motion.) The trial court granted that
No. 14AP-817 19
motion. The incorporated note contains a string of special indorsements that ends with
U.S. Bank.7
{¶ 42} On appeal, U.S. Bank argues that it can rely on the incorporated note to
establish that it is the person entitled to enforce the note. I disagree. By granting the
motion to incorporate, the trial court, at best, effectuated the attachment of a note to the
motion for summary judgment. That note, however, is not authenticated by affidavit
testimony. Consequently, the trial court could not consider it in determining whether to
grant summary judgment. See Adams, Babner & Gitlitz, L.L.C. v. Tartan Dev. Co. (West),
L.L.C., 10th Dist. No. 12AP-729, 2013-Ohio-1573, ¶ 15 (holding that documents that are
not sworn, certified, or authenticated by way of affidavit have no evidentiary value and,
generally, should not be considered by a court in ruling on a motion for summary
judgment).
{¶ 43} U.S. Bank also depends on the deposition testimony of John McCray, a loan
verification analyst IV for Wells Fargo Bank, to prove its status as a person entitled to
enforce the note. McCray identified the version of the note incorporated into the motion
for summary judgment as the Georges' note. However, McCray's testimony contravenes
Jones' testimony. Each witness identifies a different note as the Georges' note, and
neither McCray nor Jones explains the discrepancy between their testimonies.
Consequently, a genuine question of material fact remains regarding which note is
actually the Georges' note. Until that question is resolved, a court cannot determine
whether U.S. Bank is the person entitled to enforce the note.8 The trial court, therefore,
erred in granting U.S. Bank summary judgment.
{¶ 44} Because the above analysis resolves this appeal, I believe that it is not
necessary for the majority opinion to address other issues. When a court ventures beyond
7 Below, U.S. Bank argued that the indorsement to it, contained in an allonge, was a blank indorsement. The
trial court accepted this interpretation of the indorsement. On appeal, U.S. Bank contends that the
indorsement is actually a special indorsement. The Georges also describe the indorsement as a special
indorsement. Consequently, for purposes of this appeal, I will presume that the indorsement to U.S. Bank is
a special indorsement.
8 On appeal, U.S. Bank claims that, even if the version of the note attached to Jones' affidavit is the Georges'
note, it can still establish itself as the person entitled to enforce the note. To do so, U.S. Bank relies on R.C.
1303.31(A)(2), which states that a "nonholder in possession of the instrument who has the rights of a holder"
qualifies as a person entitled to enforce. U.S. Bank, however, waived this argument by not raising it before
the trial court. See Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, ¶ 34 (holding that a
party who fails to raise an argument in the court below waives his or her right to raise the argument on
appeal).
No. 14AP-817 20
the purview of the case before it, the opinions it expresses constitute dicta. Dicta are
statements made by a court that are not necessary for resolution of the issues. Heisler v.
Mallard Mechanical Co., L.L.C., 10th Dist. No. 09AP-1143, 2010-Ohio-5549, ¶ 13; accord
State ex rel. Cole v. Lucas Cty. Bd. of Elections, 130 Ohio St.3d 132, 2011-Ohio-4550, ¶ 31
(concluding that a paragraph from an earlier decision "was unnecessary to the court's
holding and was thus dicta").
{¶ 45} I believe that to resolve this case the majority opinion did not need to
overrule LSF6 Mercury REO Invests. Trust Series 2008-1 v. Locke, 10th Dist. No. 11AP-
757, 2012-Ohio-4499, in its entirety. In a trio of cases that included Locke, we held that a
debtor lacks standing to challenge the assignment of its note and mortgage because the
debtor is not a party to that assignment. JPMorgan Chase Bank, N.A. v. Romine, 10th
Dist. No. 13AP-58, 2013-Ohio-4212, ¶ 16-18; Deutsche Bank Natl. Trust Co. v. Whiteman,
10th Dist. No. 12AP-536, 2013-Ohio-1636, ¶ 16-19; Locke at ¶ 28-29. We later limited
those holdings so that, in cases where R.C. Chapter 1303 applies, a debtor may challenge
the negotiation or transfer of a note if such challenge fits the criteria of a denial, defense,
or claim in recoupment outlined in R.C. 1303.36 or 1303.35. Pasqualone at ¶ 35. Now,
the majority opinion purports to negate Locke with regard to the assignment of mortgages
and the transfer of notes not governed by R.C. Chapter 1303.9 The resolution of this case
involves neither consideration of the parties' mortgage nor a note that falls outside of the
auspices of R.C. Chapter 1303. Thus, I am concerned that the majority opinion's
overruling of Locke with regard to those types of instruments constitutes dicta.
{¶ 46} To the extent that the majority opinion's wholesale overruling of Locke is
motivated by a concern that debtors could be held liable twice for the same debt, I
understand and share that concern. However, pursuant to R.C. Chapter 1303 and our
precedent in Pasqualone, a payment to a person entitled to enforce satisfies the debtor's
mortgage loan obligation on a dollar-for-dollar basis, and the debtor never has to pay that
amount again. R.C. 1303.67(A); Pasqualone at ¶ 24. Thus, once a bank proves its status
as the person entitled to enforce the note, then the debtor will not face the danger of
double liability. Id. Consequently, in such instances, "[t]he purpose behind the defense
relating to the chain of title for the mortgage is nullified and thus inapplicable." Bank of
New York Mellon v. Froimson, 8th Dist. No. 99443, 2013-Ohio-5574, ¶ 23; accord Bank
9 I note that the majority opinion addresses neither Romine nor Whiteman. Logically, then, those two
decisions remain unaffected by the majority's opinion.
No. 14AP-817 21
of New York Mellon Trust Co., N.A. v. Unger, 8th Dist. No. 97315, 2012-Ohio-1950, ¶ 38
(rejecting the argument that homeowners must be allowed to challenge mortgage
assignments to avoid exposure to multiple payments on the basis that a payment to the
person entitled to enforce the note satisfies the debt). Because the homeowner who pays
the person entitled to enforce the note is not at risk for having to pay the same debt twice,
the homeowner cannot demonstrate an injury traceable to the mortgage assignments.
{¶ 47} Furthermore, I am hesitant to accept the majority opinion's conclusion that
the Sixth Circuit's opinion in Slorp v. Lerner, Sampson & Rothfuss, 587 Fed.Appx. 249(6th Cir.2014), justifies a change in this district's law. It appears that Slorp does not stand
for the unrestricted proposition that, in all instances, homeowners may challenge
mortgage assignments to which they are not parties. As the Sixth Circuit subsequently
recognized, Slorp left in place the requirement that, before a homeowner may challenge
an assignment, the homeowner must demonstrate "that [he or she] may be on the hook
for double payment" because of the supposed invalidity of the assignment. DAGS II, LLC
v. Huntington Natl. Bank, 616 Fed.Appx. 830 (6th Cir.2015).
{¶ 48} The majority opinion concludes that, because the bank bears the burden of
establishing the chain of mortgage assignments, it should be vulnerable to whatever
challenge the homeowner may assert regarding the validity of the assignments. However,
as many Ohio (and other) courts have recognized, some challenges—particularly those
alleging that an assignment violates a pooling and servicing agreement—are
impermissible due to a lack of standing. See In re McHugh, Bankr.N.D.Ohio No. 14-31071
(June 1, 2015) ("Courts, including the Sixth Circuit Court of Appeals, have consistently
found that borrowers lack standing to challenge compliance with the provisions of a
[pooling and servicing agreement]."); In re Walker, 466 B.R. 271, 285 (Bankr.E.D.Pa.
2012) ("[I]t appears that a judicial consensus has developed holding that a borrower lacks
standing to * * * request a judicial determination that a loan assignment is invalid due to
noncompliance with a pooling and servicing agreement."); Dernier v. Mtge. Network,
Inc., 195 Vt. 113, 122 (2013) (stating that it "has been the conclusion of the vast majority of
courts" that homeowners lack standing to challenge assignments in contravention of a
pooling and servicing agreement); Bank of Am. Natl. Assn. v. Bassman FBT, L.L.C., 2012
IL App (2d) 110729, ¶ 15 (holding that it "is widely accepted" that a homeowner "lacks
No. 14AP-817 22
standing to attack a [mortgage] assignment to which he or she is not a party" based on a
violation of a pooling and servicing agreement).
{¶ 49} I also believe it unnecessary for the resolution of this case to address two
further issues. First, contrary to the majority opinion's contention, the Georges' equitable
argument is irrelevant to a determination of whether a genuine issue of material fact
exists, thus precluding summary judgment. Second, the majority opinion's heightening of
the personal knowledge standard for affiants is not essential to the outcome of the
decision and does not appear to be consistent with Supreme Court of Ohio precedent.
That precedent holds that, unless controverted by other evidence, a "specific allegation in
the affidavit that it was made upon personal knowledge is sufficient to meet [the]
requirement of Civ.R. 56(E)" that the affiant be competent to testify regarding the matters
stated. State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467 (1981); see also
Wells Fargo Bank, N.A. v. Hammond, 8th Dist. No. 100141, 2014-Ohio-5270, ¶ 37
(refusing to require an affiant to aver that he compared the mortgage loan documents
attached to his affidavit to the original documents because the Supreme Court of Ohio has
not made this a requirement of Civ.R. 56(E)); HSBC Mtge. Servs. v. Williams, 12th Dist.
No. CA2013-09-174, 2014-Ohio-3778, ¶ 19 (same).
{¶ 50} In sum, I agree that this court should sustain the Georges' assignment of
error and reverse this matter, but for the reasons set forth above, I disagree with the
portions of the majority opinion that I consider to be dicta. Therefore, I respectfully
concur in judgment only.