U.S. Bank Natl. Assn. v. Crow , 2016 Ohio 5391 ( 2016 )

[Cite as U.S. Bank Natl. Assn. v. Crow, 2016-Ohio-5391.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
U.S. BANK NATIONAL ASSOCIATION, ) CASE NO. 15 MA 0113
AS TRUSTEE FOR CITIGROUP )
MORTGAGE LOAN TRUST, INC., )
MORTGAGE PASS-THROUGH )
CERTIFICATES, SERIES 2006-WF1, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
MARTHA E. CROW aka, )
M. ELIZABETH AGUILAR-CROW, )
et al., )
)
DEFENDANTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 2014-CV 01739
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Scott King
Atty. Terry Posey Jr.
Thompson Hine, LLP
Austin Landing I
10050 Innovation Drive, Suite 400
Miamisburg, Ohio 45342
For Defendants-Appellants: Atty. Bruce Broyles
Law Office of Bruce M. Broyles
5815 Market Street, Suite 2
Boardman, Ohio 44512
JUDGES:
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: August 16, 2016
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ROBB, J.
{¶1} Defendants-Appellants Martha E. Crow (aka M. Elizabeth Aguilar-Crow)
and Robert Crow appeal the decision of the Mahoning County Common Pleas Court
entering a judgment on a note and a decree in foreclosure. The trial court granted
summary judgment in favor of Plaintiff-Appellee U.S. Bank National Association, as
Trustee for Citigroup Mortgage Loan Trust Inc., Mortgage Pass-Through Certificates,
Series 2006-WF1 c/o Wells Fargo Bank, N.A. (“the trustee bank”).
{¶2} Appellants set forth arguments on appeal concerning: the sufficiency of
the affidavit filed in support of the summary judgment motion; the timing and sender
of the notice of default; the amount in the notice of default; and compliance with a
pooling and servicing agreement prospectus and prospectus supplement. For the
following reasons, these arguments are overruled, and the trial court’s judgment is
affirmed.
STATEMENT OF THE CASE
{¶3} On November 7, 2005, Mrs. Crow executed a promissory note in favor
of Wells Fargo Bank, N.A. in the amount of $142,500. The note was secured by a
mortgage upon realty located at 1854 5th Avenue in Youngstown, Ohio. The
mortgage was executed by Mrs. Crow and her husband and recorded on November
22, 2005.
{¶4} On July 15, 2014, the trustee bank filed a foreclosure action, seeking
judgment on the note and foreclosure under the mortgage. The complaint alleged
Mrs. Crow defaulted on the note and owed $134,998.76, plus interest from November
1, 2010. The trustee bank asserted it: accelerated the debt; performed all conditions
precedent; was entitled to enforce the note and had possession of the original note;
and had been assigned the mortgage. The blank-indorsed note and recorded
mortgage were attached to the complaint; also attached was the assignment of
mortgage from Wells Fargo Bank, N.A. to the trustee bank, which was executed on
August 26, 2011 and recorded on September 1, 2011.
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{¶5} Appellants’ answer denied various assertions in the complaint and
raised the following affirmative defenses: the mortgage was not part of the trust due
to non-compliance with the pooling and servicing agreement as it was assigned
directly to the trustee bank and the assignment was executed after the closing date of
the trust; notice of default was not provided as required by ¶ 6(C) of the note; and
notice of acceleration was not provided as required by ¶ 22 of the mortgage.
{¶6} The trustee bank moved for summary judgment, submitting the affidavit
of Cynthia Thomas, Vice President of Loan Documentation for Wells Fargo Bank,
N.A., the servicing agent for the trustee bank. She incorporated and attached the
note, mortgage, assignment of mortgage, payment history, and demand letter. She
stated the trustee bank or an agent has had possession of the note since the date
the complaint was filed. She attested the account was in default, explaining the
December 1, 2010 payment and all subsequent payments remained unpaid. She
confirmed the principal due, with interest running from November 1, 2010, and
itemized other amounts due through the date of her November 14, 2014 affidavit,
including hazard insurance and taxes. The affiant said the May 13, 2014 notice of
default was sent by first class mail in accordance with the terms of the note and
mortgage.
{¶7} Appellants filed a memorandum in opposition to summary judgment
which outlined various arguments, including most of those raised on appeal. Counsel
submitted his own affidavit. He explained how he obtained the trust’s Pooling and
Servicing Agreement Prospectus and Prospectus Supplement from the website of the
Securities and Exchange Commission. He attached those documents to his affidavit.
{¶8} On June 16, 2015, the trial court granted the motion for summary
judgment. The court entered judgment on the note against Mrs. Crow in the amount
of $134,998.76 with interest from November 1, 2010 and issued a decree in
foreclosure. Appellants filed a timely notice of appeal.
ASSIGNMENT OF ERROR & GENERAL LAW
{¶9} Appellants set forth the following general assignment of error:
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“The trial court erred in granting summary judgment to Appellee when there
were genuine issues of material fact still in dispute.”
{¶10} We review the trial court’s application of the summary judgment
standard de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000).
Summary judgment can be granted where there remain no genuine issues of material
fact for trial and where, after construing the evidence most strongly in favor of the
non-movant, reasonable minds can only conclude that the moving party is entitled to
judgment as a matter of law. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850
N.E.2d 47, ¶ 10, citing Civ.R. 56(C). The burden of showing that there are no
genuine issues of material fact initially falls upon the party who files for summary
judgment. Id., citing Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E .2d 264
(1996).
{¶11} Thereafter, the non-movant may not rest upon mere allegations or
denials in the party's pleadings but must respond, through affidavit or as otherwise
provided in the rule, by setting forth specific facts showing that there is a genuine
issue for trial. Id., citing Civ.R. 56(E). If the non-movant does not so respond,
summary judgment, if appropriate, shall be entered against him. Civ.R. 56(E).
Although courts are cautioned to construe the evidence in favor of the non-moving
party, summary judgment is not to be discouraged where the movant establishes his
case and the non-movant fails to respond with proper evidence supporting the
essentials of his defense. See Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d
266, 269, 617 N.E.2d 1068 (1993).
{¶12} By way of introduction on the topic of a promissory note, a holder of an
instrument is entitled to enforce it. See R.C. 1303.31(A)(1). In addition to the holder,
a “person entitled to enforce” an instrument also includes: a non-holder in
possession of the instrument who has the rights of a holder; and a person who is not
in possession of the instrument but who established he is entitled to enforce the
instrument and that it was lost or destroyed. R.C. 1303.31(A)(2)-(3).
{¶13} One may be a “person entitled to enforce” the instrument even though
he is not the owner of the instrument or is in wrongful possession of the instrument.
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R.C. 1303.31(B). If the instrument is payable to bearer, then the person in
possession of the instrument is the holder of the instrument. See R.C.
1301.201(B)(21)(a); former R.C. 1301.01(T)(1)(a). See also R.C. 1303.21(B) (“If an
instrument is payable to bearer, it may be negotiated by transfer of possession
alone.”). “When an instrument is indorsed in blank, the instrument becomes payable
to bearer and may be negotiated by transfer of possession alone until specially
indorsed.” R.C. 1302.25(B).
{¶14} Appellants’ first and fourth arguments touch upon standing, raising
issues with the trustee bank’s entitlement to enforce the note and its right to foreclose
on the mortgage. Although standing to file a foreclosure action must exist at the time
the complaint is filed, it need not be proven by the plaintiff in the complaint and can
be proven if contested later in the action (such as at the summary judgment stage).
Wells Fargo Bank, N.A. v. Horn, 142 Ohio St.3d 416, 2015-Ohio-1484, 31 N.E.3d
637, ¶ 12, applying Federal Home Loan Mortgage Corp. v. Schwartzwald, 134 Ohio
St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 28.
{¶15} Appellants separate their arguments into four issues presented for
review, and we divide our analysis accordingly.
SUFFICIENCY OF AFFIDAVIT
{¶16} The first issue presented for review asks: “Whether the affidavit of
Cynthia A. Thomas a Vice President of Loan Documentation with Wells Fargo Bank,
N.A. was sufficient to demonstrate the absence of a genuine issue of material fact.”
{¶17} As aforementioned, the affiant incorporated and attached copies of the
note, mortgage, mortgage assignment, demand letter, and payment history to her
affidavit. Appellant contends the language used in the affidavit was insufficient to
authenticate these “copies” as the affiant failed to specify the copies were “true and
accurate.” Without these documents, Appellant states the trial court could not
determine the note was endorsed in blank (by Wells Fargo Bank, N.A. as the original
payee), the mortgage was assigned to the trustee bank, and the notice of default was
proper.
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{¶18} In general, no evidence or stipulation may be considered in ruling on a
summary judgment motion except as stated in Civ.R. 56. See Civ.R. 56(C). There is
an exception where the non-movant fails to object to the movant’s summary
judgment evidence, in which case consideration of unsworn and unauthenticated
exhibits is within the trial court’s discretion. State ex rel. Gilmour Realty, Inc. v.
Mayfield Heights, 122 Ohio St.3d 260, 2009-Ohio-2871, 910 N.E.2d 455, ¶ 10, 17;
Bank of America, N.A. v. Staples, 7th Dist. No. 14MA109, 2015-Ohio-2094, ¶ 36-39.
The evidence that can be used in ruling on summary judgment includes the
pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact. Civ.R. 56(C).
{¶19} Pursuant to Civ.R. 56(E), affidavits must be made on personal
knowledge, set forth such facts as would be admissible in evidence, and show
affirmatively that the affiant is competent to testify to the matters stated therein. This
requirement can be satisfied where the affiant says she has personal knowledge the
records exist in the business file and explains how she is competent to incorporate
those records. See, e.g., State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459,
467, 423 N.E.2d 105 (1981).
{¶20} In satisfying this portion of Civ.R. 56(E), the affiant attested: she was
familiar, in the regular performance of her job functions, with the business records
maintained by Wells Fargo for the purpose of servicing mortgage loans; the records
were made at or near the time of the activity from information provided by persons
with knowledge of the activity reflected in such records; the records were kept in the
course of regular business activity; and she acquired personal knowledge of the
matters in the affidavit by examining these business records. See Evid.R. 803(6)
(business records hearsay exception). The affiant said she was authorized to
execute the affidavit in her capacity as the Vice President of Loan Documentation for
Wells Fargo Bank, N.A., who was the servicing agent for the trustee bank, and she
was competent to testify to the matters contained in the affidavit. In a foreclosure
action, “the affidavit of a loan servicing agent employee with personal knowledge
provides sufficient evidentiary support for summary judgment in favor of the
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mortgagee.” Fannie Mae v. Bilyk, 10th Dist. No. 15AP-11, 2015-Ohio-5544, ¶ 11
(collecting cases).
{¶21} Civ.R. 56(E) also provides: “Sworn or certified copies of all papers or
parts of papers referred to in an affidavit shall be attached to or served with the
affidavit.” The affiant discussed various documents and attached these documents
after testifying: “Attached as exhibits hereto are copies of the Note (Exhibit A) with
any applicable endorsements and the Mortgage (Exhibit B) with any applicable
Assignments (Exhibit C), and a payment history (Exhibit D), and the demand letter
(Exhibit E) redacted solely to protect any private, personal, financial information.”
Affidavit at ¶ 10.
{¶22} In Seminatore, the Supreme Court stated: “The requirement of Civ.R.
56(E) that sworn or certified copies of all papers referred to in the affidavit be
attached is satisfied by attaching the papers to the affidavit, coupled with a statement
therein that such copies are true copies and reproductions.” Seminatore, 66 Ohio
St.2d at 467. Notably, the Court was addressing the form of the particular affidavit
submitted in the case before it; that affidavit specifically employed the phrase “true
copies and reproductions.” See Seminatore, 8th Dist. No. 40343 (Mar. 6, 1980).
{¶23} The Supreme Court’s syllabus provides: “Verification required by
Civ.R. 56(E) of documents attached to an affidavit supporting or opposing a motion
for summary judgment is satisfied by an appropriate averment in the affidavit itself.”
Seminatore, 66 Ohio St.2d at paragraph 3 of syllabus. This suggests the language
on “true copies and reproductions” is but an example of an “appropriate averment”
rather than an absolute requirement. See, e.g., U.S. Bank Natl. Assn. v. Stallman,
8th Dist. No. 102732, 2016-Ohio-22, ¶ 6, 15-16.
{¶24} In addressing other aspects of the affidavit in Seminatore, the Court
found “[t]he form leaves much to be desired,” but “it is within the sound discretion of
the trial court to require such an affidavit to be made more precise * * *” and “to
accept the affidavit in the form submitted.” Id. at 467-468. This dealt with a
statement in the affidavit that the facts set forth in a “preliminary statement” were
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incorporated and “true to the best of my knowledge and belief,” but the preliminary
statement was unclear as to what matters were argument and what matters were
factual statements. Id. at 468. The Supreme Court upheld the trial court’s exercise
of discretion in accepting the affidavit in support of summary judgment and held the
appellate court erred in finding the affidavit to be insufficient as a matter of law. Id.
{¶25} The trustee bank urges that Civ.R. 56(E) does not require talismanic
language in attaching a sworn copy, i.e. the affiant need not use an incantation
describing as “true” or “accurate” the “copies” of named documents attached as
exhibits. The trustee bank argues the addition of “true” or “accurate” before “copy” is
redundant, akin to saying “the exact same” or “free gift.” The bank cites various
Evidence Rules as reviewed in a Fourth District case where the affiant testified the
promissory note attached to the complaint was a copy of the note the debtor
executed. See American Savs. Bank v. Wrage, 4th Dist. No. 13CA3566, 2014-Ohio-
2168, ¶ 20 (finding the affiant’s statement established the note was a duplicate under
Evid.R. 1001(4) and authenticated the exhibit).
{¶26} “The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.” Evid.R. 901(A). “By way of
illustration only, and not by way of limitation, the following are examples of
authentication or identification conforming with the requirements of this rule: (1)
Testimony of witness with knowledge. Testimony that a matter is what it is claimed to
be.” Evid.R. 901(B).
{¶27} This court and others have accepted statements other than “true
copies” or “true copies and reproductions.” For instance, an affiant can describe an
exhibit showing financial information in an account as a “hard copy printout.” See
Citibank v. McGee, 7th Dist. No. 11MA158, 2012-Ohio-5364, ¶ 14-18; Citibank
(South Dakota) N.A. v. Lesnick, 11th Dist. No. 2005-L-013, 2006-Ohio-1448, ¶ 14.
{¶28} The witness established she attained personal knowledge of the
information in her affidavit through regularly kept business records. She testified
about the knowledge she gained from those records via a sworn, properly notarized
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affidavit. Her affidavit incorporated documents by reference and specifically listed the
attached exhibits. She explained the attached copies had been redacted to protect
certain information. (The loan number was blacked out.) By stating in a sworn
affidavit the exhibits attached were “copies” of the listed documents, she verified that
the documents were what she claimed.
{¶29} We additionally note that when a claim is founded on a written
instrument, a copy of the written instrument must be attached to the pleading. Civ.R.
10(D). “A copy of any written instrument attached to a pleading is a part of the
pleading for all purposes.” Civ.R. 10(C). Pursuant to Civ.R. 56(C), the pleadings are
properly considered as summary judgment evidence. Here, the note, mortgage, and
mortgage assignment were attached to the complaint as the claim was founded upon
these written instruments. The contents of these written instruments attached to the
complaint could be viewed in ruling on summary judgment. See Ohio Dept. of Job &
Family Servs. v. Amatore, 7th Dist. No. 09MA159, 2010-Ohio-2848, ¶ 37.
{¶30} After citing Amatore, the Tenth District has specified that a plaintiff is
not required to provide an affidavit authenticating the note and mortgage attached to
a complaint in a foreclosure action. U.S. Bank, Natl. Assn., as Successor Trustee v.
Goldsmith, 10th Dist. No. 14AP-783, 2015-Ohio-3008, ¶ 10, also citing M & T Bank v.
Steel, 8th Dist. No. 101924, 2015-Ohio-1036, ¶ 17. On the topic of possession of
bearer paper, courts have upheld summary judgment despite arguments on
possession where the promissory note attached to the complaint was indorsed in
blank and a representative of the servicing agent or the bank testified by affidavit that
the plaintiff was in possession of the note at the time of the filing of the complaint.
See, e.g., U.S. Bank Natl. Assn., as Trustee v. Urbanski, 10th Dist. No. 13AP-520,
2014-Ohio-2362, ¶ 10; U.S. Bank, N.A. v. Adams, 6th Dist. No. E-11-070, 2012-Ohio-
6253, ¶ 18.
{¶31} Contrary to Appellant’s related suggestion, it has been said an affiant
need not specifically explain that the attached copy was compared to the original
note in order to ensure the bank actually had possession of a note payable to bearer.
See Wells Fargo Bank, N.A. v. Hammond, 8th Dist. No. 100141, 2014-Ohio-5270, 22
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N.E.3d 1140, ¶ 37; HSBC Mtge. Servs. v. Williams, 12th Dist. No. CA2013-09-174,
2014-Ohio-3778 (noting this is not required under Seminatore). In addition, it has
been observed: “the averment in [the] affidavit that [the bank] was in possession of
the note at the time it filed its complaint is supported by the fact that a copy of the
note endorsed in blank was attached to the complaint when it was filed by [the
bank].” Nationstar Mtge., L.L.C. v. Wagener, 8th Dist. No. 101280, 2015-Ohio-1289,
¶ 36.
{¶32} Here, a copy of the note endorsed in blank was attached to the
complaint, the affiant expressed she had personal knowledge of the business records
related to this mortgage loan, and the affiant attested: “At the time of the filing of the
complaint in the above-referenced action, and to date [the trustee bank], directly or
through an agent, had and has been in possession of the Promissory Note.” If
Appellants wished to dispute this statement or seek a more specific assurance,
discovery could have been conducted via requests for admissions, interrogatories,
inspections, or deposition with an accompanying document subpoena. “[T]here is no
requirement that the affiant explain the basis of the firsthand knowledge * * *.” U.S.
Bank Natl. Assn. v. LaVette, 8th Dist. No. 101348, 2015-Ohio-765, ¶ 5.
{¶33} These observations also apply to Appellants’ next complaint: the affiant
described the trustee bank’s possession of the note as being “directly or through an
agent.” Appellants believe this phrase shows the affiant did not know who possessed
the note. It should be pointed out the affiant was describing possession of the note
from the day the action was filed on July 15, 2014 through the day her affidavit was
signed on November 17, 2014, rather than on one specific day. Moreover, we
recently held an affidavit attesting to possession “directly or through an agent” was
not too vague to support the movant’s claim that it possessed a note payable to
bearer. Wells Fargo Bank, N.A. v. Cook, 7th Dist. Nos. 15CO13, 15CO19, 2016-
Ohio-1060, ¶ 34. A plaintiff does not lose constructive and legal possession of
bearer paper merely because it was held by an agent on behalf of the plaintiff. See
id., citing U.S. Bank Natl. Assn., as Trustee v. Gray, 10th Dist. No. 12AP-953, 2013-
Ohio-3340, ¶ 26.
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Constructive possession exists when an agent of the owner holds the
note on behalf of the owner * * * consequently, a person is a holder of a
negotiable instrument, and entitled to enforce the instrument, when the
instrument is in the physical possession of his or her agent.
Gray, 10th Dist. No. 12AP-953 at ¶ 25 (the servicing agent for a mortgagee can hold
physical possession of the blank-indorsed note on behalf of the plaintiff-bank without
destroying the plaintiff bank’s possession).
{¶34} As the Tenth District pointed out, an official comment to the Uniform
Commercial Code provides: “Negotiation always requires a change in possession of
the instrument because nobody can be a holder without possessing the instrument,
either directly or through an agent.” Gray, 10th Dist. No. 12AP-953 at ¶ 25
(emphasis added by court), quoting U.C.C. Section 3-201, Comment 1 (1990). See
also Freedom Mtge. Corp. v. Vitale, 5th Dist. No. 2013 AP 08 0037, 2014-Ohio-1549,
¶ 16 (where the bank had physical possession of the note on the day the complaint
was filed and where the note was thereafter placed with various agents of the bank,
such as the custodian bank, the servicing agent, and counsel). Applying these
holdings, Appellants’ argument is overruled.1
{¶35} Appellants’ final argument under this heading deals with the sufficiency
of the affidavit concerning the May 13, 2014 letter providing notice of default. The
affiant stated, “A Notice of Default letter dated May 13, 2014 was sent to Borrower(s)
by first class mail in accordance with the terms of the Promissory Note and
Mortgage.” See Mortgage at ¶ 15 (any notice shall be deemed to have been given to
the borrower when mailed by first class mail or when actually delivered if sent by
other means); Note at ¶ 6 (any notice will be given by delivering it or by mailing it by
1Appellants also suggest there is a problem with statement in the affidavit that the trustee bank “is either the original
payee of the Promissory Note or the Promissory Note has been duly endorsed” in combination with her later identification of “the
Note (Exhibit A) with any applicable endorsements.” Contrary to Appellants’ suggestion, although the statements sound
generic, they do not indicate a lack of possession at the pertinent times. In fact, a statement that a copy of the note “with any
applicable endorsements” is attached suggests it is a copy of the original note, as only that note would have the applicable
endorsements. The note attached to the complaint and to the affidavit shows the note was endorsed in blank (by the original
payee), and the affiant stated the trustee bank had possession. In addition, the original lender executed an assignment of the
mortgage loan to the trustee bank in 2011. Regardless, this argument appears to be dependent on Appellants’ initial contention
that the court cannot view the note (to ascertain it is bearer paper), and Appellants did not argue the alleged significance of this
statement to the trial court.
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first class mail to the property address listed in note). The affidavit further asserted
that a copy of the demand letter was attached as Exhibit E. The letter was in fact
attached to the affidavit as Exhibit E.
{¶36} Appellants claim the affiant failed to attach the business record she
relied upon to support the statement that the demand letter was sent by first class
mail. The trustee bank responds that an affiant need not attach every document she
used to obtain personal knowledge of the situation reflected in the business records.
Citing, e.g., Bank One, N.A. v. Swartz, 9th Dist. No. 03CA008308, 2004-Ohio-1986, ¶
14 (“An affidavit stating the loan is in default is sufficient for purposes of Civ.R. 56, in
the absence of evidence controverting those averments.”). See also U.S. Bank, Natl.
Assn. v. Wigle, 7th Dist. No. 13MA32, 2015-Ohio-2324, ¶ 36 (quoting this portion of
the Swartz case). Regardless, we need not address whether the various cited cases
extend to the mailing of a demand letter.
{¶37} Contrary to Appellants’ position, the affiant did attach a business record
supporting her statement that the letter was mailed via first class mail. Exhibit E
consisted of three pages. The first page reflects the contents of the envelope
evidencing the mailing of the letter by first class mail to the borrower at the address
for the property subject to this foreclosure action. The document has bar codes, and
in the corner reserved for a stamp is a box containing the following information:
“PRESORT First-Class Mail U.S. Postage and Fees Paid WSO.”
{¶38} We previously reviewed a similar submission and found it sufficiently
supported an affiant’s claim of first-class mailing. See Bank of Am., N.A. v. Staples,
7th Dist. No. 14 MA 109, 2015-Ohio-2094, ¶ 64-67 (concluding the presence of the
letter in the business records was not the sole reason the affiant ascertained the
letter had been mailed to Appellant). See also Bank of New York Mellon v. Bobo, 4th
Dist. No. 14CA22, 2015-Ohio-4601, ¶ 43 (where affiant stated a breach letter was
mailed in accordance with the note and mortgage and the face of the letter said it
was sent by first-class mail). Appellant’s argument as to evidence of mailing is
without merit. The first issue presented for review is overruled.
NOTICE OF DEFAULT: TIMING & SENDER
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{¶39} The second issue presented for review asks: “Whether a genuine issue
of material fact remained in dispute regarding Appellee’s fulfillment of the condition
precedent.”
{¶40} The notice of default and acceleration provisions of a note and
mortgage are conditions precedent to the initiation of a foreclosure action. See, e.g.,
Huntington Bank v. Popovec, 7th Dist. No. 12 MA 119, 2013-Ohio-4363, ¶ 15;
LaSalle Bank, N.A. v. Kelly, 9th Dist. No. 09CA0067-M, 2010-Ohio-2668, ¶ 13; First
Financial Bank v. Doellman, 12th Dist. No. CA2006-02-029, 2007-Ohio-222, ¶ 20.
On this topic, the note provides:
If I am in default, the Note Holder may send me a written notice telling
me that if I do not pay the overdue amount by a certain date, the Note
Holder may require me to pay immediately the full amount of Principal
which has not been paid and all the interest that I owe on that amount.
That date must be at least 30 days after the date on which the notice is
mailed to me or delivered by other means.
Note at ¶ 6(C). See also Note at ¶ 6(D) (“Even if, at a time when I am in default, the
Note Holder does not require me to pay immediately in full as described above, the
Note Holder will still have the right to do so if I am in default later.”). Similarly, the
mortgage provides:
Lender shall give notice to Borrower prior to acceleration following
Borrower’s breach of any covenant or agreement in this Security
Instrument * * * This notice shall specify: (a) the default; (b) the action
required to cure the default; (c) a date, not less than 30 days from the
date the notice is given to Borrower, by which the default must be
cured; and (d) that failure to cure the default on or before the date
specified in the notice may result in acceleration of sums secured by
this Security Instrument, foreclosure by judicial proceeding and sale of
the Property.
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Mortgage at ¶ 22. This clause further provides that if the default is not cured on or
before the date specified in the notice, the lender may require immediate payment of
all secured sums without further demand and foreclose the instrument by judicial
proceeding. Id.{¶41} Appellants’ first argument concerning the notice of default is based on
their claim the loan had already been accelerated at the time of the May 13, 2014
notice. Appellants explain this was a refiled action, which was originally filed in April
2011. They cite to the complaint in the prior action to show the bank previously
declared the entire amount due; Appellants did not submit the complaint as summary
judgment evidence. Appellants conclude the May 13, 2014 notice of default was not
proper without evidence the loan had been reinstated or decelerated.
{¶42} Appellants cite no law in support of this conclusion. The note and
mortgage merely require the notice of default to provide a cure date that is not less
than 30 days from the date the notice is given, after which time a foreclosure action
can be filed. There is no requirement, for instance, that notice of default and
acceleration are to be provided if the bank opts not to immediately accelerate and
foreclose. Likewise, there is no restriction on sending a later notice even if an earlier
notice was sent. Appellants’ argument fails to take into account the common
situation where: a prior action did not proceed due to a flaw involving the prior notice,
in which case the action is dismissed and a new notice is mailed; or a bank provides
multiple demand letters hoping to motivate a payment. In sum, there is no issue with
timing as the May 13, 2014 notice of default was sent by first-class mail to the
borrower at the proper address, the cure date was more than 30 days from the date
of the letter, there was no attempt to cure, and the foreclosure action was not initiated
until after that date.
{¶43} Appellants’ second allegation concerns the language in the note
providing the “Note Holder” may send notice of default with a cure date to the
borrower. See Note at ¶ 6(C). See also Mortgage at ¶ 22 (providing the “Lender”
shall give notice to the borrower prior to acceleration). After disclosing the note can
be transferred by the lender, the note explains: “The lender or anyone who takes this
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Note by transfer and who is entitled to receive payments under this Note is called the
‘Note Holder’.” Note at ¶ 1. Upon reciting that Wells Fargo Bank, N.A. is the
originator and servicer of the mortgage loan, Appellants conclude with one argument:
“the notice of default was sent by Wells Fargo Home Mortgage an entity with no
relationship to the transaction.”2
{¶44} The letterhead return address on the May 13, 2014 notice of default
was that of Wells Fargo Home Mortgage, and the end of the notice said it was from
Wells Fargo Home Mortgage Default Management Department. It appears
Appellants are protesting the failure to specifically use the name Wells Fargo Bank,
N.A. However, the name Wells Fargo Bank, N.A. was used twice in the notice of
default. The notice was mailed to the borrower at the property address which
secured the note via the mortgage. As the trustee bank points out: the notice of
default contained Appellants’ loan number; Appellants do not indicate confusion as to
whom or to where their payments were due; and Appellants were aware Wells Fargo
was servicing their loan.
{¶45} Notably, if the note and mortgage were sold, notice to the borrower was
only required if there was a change in the loan servicer. See Mortgage at ¶ 20.
Factually, it is not uncommon for a loan servicer to provide the notice of default. See,
generally, U.S. Bank, N.A. v. Christmas, 2d Dist. No. 26695, 2016-Ohio-236, ¶ 3;
Fannie Mae v. Bilyk, 10th Dist. No. 15AP-11, 2015-Ohio-5544, ¶ 10 (where sub-
servicer accelerated the loan); U.S. Bank, N.A. v. Lawson, 5th Dist. No.
13CAE030021, 2014-Ohio-463, ¶ 7, 15 (notice of default letter sent by a third-party
vendor of servicing agent); HSBC Bank USA Natl. Assn. as Trustee v. Lampron, 5th
Dist. No. 10-CA-5, 2010-Ohio-5088, ¶ 9, 14; Sutton Funding, L.L.C. v. Herres, 188
Ohio App.3d 686, 2010-Ohio-3645, 936 N.E.2d 574, ¶ 27 (2d Dist.). In fact, the
2 In setting forth facts before this argument, Appellants briefly point to the custodian bank listed in the
prospectus supplement and express a belief the custodian may have possession of the note. They do not
connect this statement to their prior statement as to the note’s definition of a note holder. The concept of
constructive possession was explained supra. (Appellants cite nothing to suggest a trustee bank is not entitled to
enforce a mortgage loan if a trust provides a custodian is to physically store the assets.) In any event, whether
the trustee bank has standing is a question discussed elsewhere. This section concerns whether the notice of
default was proper. More arguments on the trust are presented in the fourth issue presented.
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documents attached to the affidavit of Appellants’ counsel show Wells Fargo Bank,
N.A. was the entity to whom the borrower made the mortgage payments and the
entity who could modify the loan and grant indulgences to the borrower. Regardless,
Appellants do not clearly construct an argument under this heading specifying, for
instance, that the servicer cannot provide the notice of default on behalf of the trustee
bank and cite no law in support of such a premise. Appellants’ second issue
presented is overruled.
AMOUNT IN NOTICE OF DEFAULT
{¶46} Appellants’ third issue presented for review queries: “Whether Appellee
can fulfill a condition precedent by providing a notice of default that demands the
wrong amount to cure the default.”
{¶47} On the topic of the amount disclosed in the notice of default, the note
provides the notice must inform the borrower she may be required to pay immediately
the full amount of unpaid principal and all interest owed on that amount if she does
not “pay the overdue amount” by a certain date. Note at ¶ 6(C). The mortgage
provides the notice shall specify the default and the action required to cure the
default. Mortgage at ¶ 22.
{¶48} The May 13, 2014 notice of default discloses the amount of past due
payments as $68,818.33. Appellants posit that, according to the documents
submitted by the trustee bank, the amount of past due payments should be
$43,898.27; Appellants multiply $1,020.89 (the monthly payment listed in the note) by
43 missed payments. Appellants conclude the amount listed for past due payments
is too high by nearly $25,000.
{¶49} As the trustee bank responds, Appellants’ calculation fails to take into
account property taxes and hazard insurance, which are not reflected in a promissory
note’s recitation of the monthly payment. That is, the note discloses $1,020.89 is the
monthly payment toward principal and interest. Note at ¶ 3. On the day the periodic
payments are due under the note, the borrower is also obligated to pay to the lender
a sum to provide for payment of amounts due for taxes and premiums for insurance.
Mortgage at ¶ 3 (defining the “Funds for Escrow Items”). The borrower shall pay
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taxes and items attributable to the property which can attain priority over the security
instrument. Mortgage at ¶ 4.
{¶50} The lender can pay for whatever is reasonable to protect the lender’s
interest, including paying any sums secured by a lien with priority over the security
instrument; any amounts so disbursed shall become additional debt secured by the
instrument and shall be payable with interest from the date of disbursement.
Mortgage at ¶ 9. Likewise, if the borrower fails to maintain hazard insurance on the
property, the lender can obtain coverage at the lender’s option and the borrower’s
expense; any amount so disbursed, shall become additional debt secured by the
instrument and shall be payable with interest from the date of disbursement.
Mortgage at ¶ 5.
{¶51} In the time between the default and the May 13, 2014 notice, $9,030.73
had been advanced by the lender to Appellants’ escrow account and then disbursed
for property taxes. In fact, Appellants’ February 17, 2011 tax payment was satisfied
by their escrow account with no advance from the lender; their July 21, 2011 tax
payment depleted their escrow account leaving a tax bill of $11.59 for the lender to
pay; and, the subsequent property tax bills were wholly paid by the lender as the
escrow account had been depleted.
{¶52} In this same time period, the lender advanced $17,817 to Appellants’
escrow account for hazard insurance payments. (As explained below, payments
totaling $26,566 were originally advanced and disbursed for insurance, but $8,749
was refunded, leaving an actual disbursement of $17,817 at the time the notice was
provided.) From Appellant’s calculation of missed principal and interest payments
and the face of the documents provided by the lender on insurance and taxes, there
is no indication the notice of default contained an amount of overdue past payments
at odds with the borrower’s obligations under the mortgage loan. Appellants’ blanket
argument, which assumes past due payments only include the monthly payment for
principal and interest listed in the note without regard to escrow advances, is without
merit.
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{¶53} Appellants alternatively argue the notice of default contains an improper
amount to cure because they perceive a “discrepancy” between the account history
attached to the affidavit and the affiant’s statement about hazard insurance. The
affiant said the trustee bank was owed $17,817 for hazard insurance disbursements
through the date of the November 14, 2014 affidavit. After reviewing the account
history, Appellants’ brief points to two refunds for insurance (credited to Appellants as
escrow advance repayments): $7,027 and $1,722 (although Appellants mistakenly
say $1,720). These refunds total $8,749. Appellants’ brief also lists the
disbursements for insurance (made after the lender advanced sums to the escrow
account): $9,329; $8,400; $7,027; and $1,810. These disbursements total $26,566.
{¶54} The disbursements of $26,566 minus the refunds of $8,749 equals
$17,817, which explains the amount of $17,817 provided in the affidavit as the
amount owed for hazard insurance. However, Appellants’ brief calculates the
amount of disbursements as $24,756. This calculation fails to include the $1,810
disbursement for hazard insurance on April 7, 2014, prior to the notice of default (and
prior to the affidavit). Appellants’ claimed “discrepancy” is the result of their omission.
{¶55} Appellants’ final argument under this heading points to the $1,810
disbursement for hazard insurance on April 7, 2014 and the $8,749 in insurance
refunds on April 9, 2014. Appellants acknowledge the bank credited the refunds to
their account. Appellants allude to an unspecified overcharge by conjecturing the
insurance must actually cost $1,810 per year since this is the amount of the April 7,
2014 disbursement.
{¶56} Appellants’ speculative and unclear argument does not demonstrate a
genuine issue of material fact as to whether the condition precedent of providing
proper notice of default was satisfied. Moreover, in moving for summary judgment,
the bank was not required to justify the amount paid for insurance in order to show it
provided proper notice of default. When moving for summary judgment, the bank
was unaware insurance was an issue. (The answer raised the failure to provide
notice as required by the note and mortgage.) Finally, Appellants submitted
argument but no evidence on the issue of insurance in response to summary
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judgment. For all of these reasons, Appellants’ arguments concerning the notice of
default are overruled.
POOLING & SERVICING AGREEMENT
{¶57} Appellants frame their fourth issue presented for review as follows:
“Whether Appellee possessed an interest in the promissory note and mortgage.”
{¶58} In response to the motion for summary judgment, Appellants attached
the affidavit of their attorney. He explained how he obtained the Pooling and
Servicing Agreement Prospectus and the Prospectus Supplement associated with
the trust. Counsel’s affidavit incorporated and attached those documents.
{¶59} The documents show U.S. Bank National Association is the trustee of
Citigroup Mortgage Loan Trust 2006-WF1. See Prospectus Supplement at
“Summary” and at “Trustee”. It is a New York common law trust established pursuant
to a pooling and servicing agreement; it is the “issuing entity.” The trust owns the
mortgage loans and assets described under the pooling and servicing agreements.
The trust acts through its trustee (and trust administrator). See Prospectus
Supplement at “Issuing Entity.” The trustee’s responsibilities include accepting
delivery of the mortgage loans and acting as fiduciary on behalf of the
certificateholders (who own an interest in the trust). See Prospectus Supplement at
“Trustee” and at “Your certificates will be limited obligations * * *.”
{¶60} Appellants begin with a principle in New York law providing that a
trustee’s act is void if it was in contravention of the instrument creating the trust, citing
New York Estates, Powers and Trusts Law, Sec. 7-2.4. Appellants contend the
trustee bank’s receipt of the promissory note and mortgage is void because it was not
accomplished in the manner required by the Pooling and Servicing Agreement
Prospectus and Prospectus Supplement. Appellants point out the trust’s closing date
was March 30, 2006. Appellants then rely on the following statement in the
Prospectus Supplement:
Pursuant to one or more sale agreements, the originator [Wells
Fargo Bank, N.A.] sold the mortgage loans originated by it, directly or
indirectly, without recourse, to the sponsor [Citigroup Global Markets
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Realty Corp.]. Pursuant to an assignment and recognition agreement,
the sponsor will sell, transfer, assign, set over and otherwise convey the
mortgage loans, without recourse, to the depositor [Citigroup Mortgage
Loan Trust Inc.] on the closing date. Pursuant to the pooling and
servicing agreement, the depositor will sell, transfer, assign, set over
and otherwise convey all of the mortgage loans, without recourse, to
the trustee, for the benefit of the certificateholders, on the closing date.
The depositor will deliver or cause to be delivered to the trustee,
or to a custodian on behalf of the trustee, with respect to each
mortgage loan, among other things: the mortgage note endorsed in
blank, the original mortgage with evidence of recording indicated
thereon and an assignment of the mortgage in blank.
Prospectus Supplement at “Assignment of the Mortgage Loans,” pages 102-103.
{¶61} Appellants assume the note and mortgage were owned by Wells Fargo
Bank, N.A. until it executed the mortgage assignment to the trustee bank on August
26, 2011. Because this was five years after the closing date of the trust and was
directly from the originator to the trustee (with no mention of the sponsor or the
depositor), Appellants conclude the transaction was void for not complying with the
trust documents and the trustee bank has no interest in the note or mortgage.
{¶62} However, this is speculative. Initially, we point out the quoted provision
of the supplement does not merely refer to a pooling and servicing agreement. It
also refers to a sales agreement and an assignment and recognition agreement.
These were not submitted, and the significance of these agreements is ignored by
Appellants’ argument. Moreover, as the trustee bank points out, the depositor was to
provide the trustee with the note, the original recorded mortgage, and an assignment
of the mortgage in blank. The documents do not evidence a requirement that the
assignment of the mortgage was to be specifically executed in favor of the trustee by
the closing date. In addition, there is no evidence the note was not transferred at the
proper time or in the proper manner.
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{¶63} Furthermore, the documents submitted by Appellants, including the
section partially quoted by Appellants, specifically allow for the cure of deficient
documentation by the originator. Accordingly, Appellant has not established a
genuine issue of material fact concerning a meaningful violation of the trust
documents so as to render a mortgage loan outside of the trust for purposes of a
foreclosure action against the debtor.
{¶64} In fact, the trust documents submitted by Appellants do not define
standing to enforce a note in an Ohio court. Rather, they are the prospectus and
supplement supplied to the investors. As outlined in the introductory law section, a
“person entitled to enforce” an instrument is: (1) the holder of the instrument; (2) a
non-holder in possession of the instrument who has the rights of a holder; or (3) a
person not in possession of the instrument who is entitled to enforce the instrument
(after establishing such entitlement and that it was lost or destroyed). R.C.
1303.31(A)(1)-(3). A plaintiff may be a “person entitled to enforce” the instrument
even though he is not the owner of the instrument or is in wrongful possession of the
instrument. R.C. 1303.31(B).
{¶65} If the instrument is payable to bearer, then the person in possession of
the instrument is the holder of the instrument. See R.C. 1301.201(B)(21)(a); former
R.C. 1301.01(T)(1)(a). See also R.C. 1303.21(B) (“If an instrument is payable to
bearer, it may be negotiated by transfer of possession alone.”). The note is payable
to bearer as it was indorsed in blank by Wells Fargo as the original payee. See R.C.
1302.25(B) (“When an instrument is indorsed in blank, the instrument becomes
payable to bearer and may be negotiated by transfer of possession alone until
specially indorsed.”).
{¶66} By virtue of its possession of the note endorsed in blank, the trustee
bank was the holder of the note and entitled to enforce the note under Ohio law.
Where the plaintiff was in possession of a note indorsed in blank, various Ohio courts
have utilized this law to describe as irrelevant the debtor’s arguments on whether
there was compliance with the pooling and servicing agreements. Logansport Savs.
Bank, FSB v. Shope, 10th Dist. No. 15AP-148, 2016-Ohio-278, ¶ 17-18; Bank of New
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York Mellon v. Bobo, 4th Dist. No. 14CA22, 2015-Ohio-4601, ¶ 32; Bank of New York
Mellon v. Antes, 11th Dist. No. 2014–T–0028, 2014–Ohio–5474, ¶ 40-42; Deutsche
Bank Natl. Trust Co. v. Najar, 8th Dist. No. 98502, 2013-Ohio-1657, ¶ 61-62.3
{¶67} We alternatively note the trustee bank argues the debtor has no
“standing” (or is not eligible) to contest whether there was literal compliance with
agreements entered between other entities. Appellants recognize there is law
against them on the matter of their “standing” to raise this issue. Various courts have
concluded a debtor lacks “standing” to challenge whether the transfer of the
mortgage loan to the trust complied with the pooling and servicing agreement. See,
e.g., Bank of New York Mellon Trust Co., N.A. v. Unger, 8th Dist. No. 101598, 2015-
Ohio-769, ¶ 7, citing Bank of New York Mellon Trust Co. v. Unger, 8th Dist. No.
97315, 2012-Ohio-1950, ¶ 35; Bank of New York Mellon v. Clancy, 2d Dist. No.
25823, 2014-Ohio-1975, ¶ 22, 33; HSBC Bank USA, Natl. Assocs. as Trustee v.
Sherman, 1st Dist. No. C-120302, 2013-Ohio-4220, ¶ 21; Waterfall Victoria Master
Fund Ltd. v. Yeager, 11th Dist. No. 2012-L-071, 2013-Ohio-3206, ¶ 21.
{¶68} Notably, courts in New York have declared debtors have no standing to
challenge possession of a note or status as assignee based on the purported non-
compliance with pooling and servicing agreements. See, e.g., Wells Fargo Bank,
N.A. v. Erobobo, 127 A.D.3d 1176, 1178, 9 N.Y.S.3d 312, 314 (2015) (reversing the
trial court’s ruling that the trustee’s acceptance of the note and mortgage after the
trust’s closing date and directly from sponsor were void under the same New York
statute cited by Appellants herein), citing Bank of N.Y. Mellon v. Gales, 116 A.D.3d
723, 725, 982 N.Y.S.2d 911, 912 (2014). See also Rajamin v. Deutsche Bank Natl.
Trust Co., 757 F.3d 79, 86-87 (2d Cir.2012) (affirming district court which held: “The
weight of caselaw throughout the country holds that a non-party to a PSA lacks
3 On a subsequent issue concerning the signature on the mortgage assignment, the Najar court said the
mortgage follows the note, so that if the bank possesses the note indorsed in blank, the mortgage is considered
equitably assigned. Najar, 8th Dist. No. 98502 at ¶ 65. See also Thompson v. Bank of America, N.A., 773 F.3d
741, 749 (6th Cir.2014) (applying Tennessee U.C.C. law regardless of pooling and servicing agreement and then
concluding mortgage follows note).
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standing to assert noncompliance with the PSA as a claim or defense unless the non-
party is an intended (not merely incidental) third party beneficiary of the PSA.”)
{¶69} Appellants cite cases stating a debtor can raise the legal effects of prior
assignments in defending a foreclosure action, noting a debtor should be permitted to
protect himself from paying a debt twice. See, e.g., Slorp v. Lerner, Sampson &
Rothfuss, 587 F.Appx. 249, 254-56 (6th Cir.2014); BAC Home Loan Servicing L.P. v.
McFerren, 9th Dist. No. 26384, 2013-Ohio-3228, 6 N.E.3d 51, fn. 4. In Slorp, the
United States Sixth Circuit Court of Appeals held a debtor can challenge a mortgage
assignment on the grounds it was not legally effective to pass title. Slorp, 587
F.Appx. at 254-56 (in an action against a bank based on allegations of fraud). See
also U.S. Bank Natl. Assn. v. George, 10th Dist. No. 14AP-817, 2015-Ohio-4957, ¶
26 (relying on Slorp and holding the debtor has a personal stake in challenging
whether a person claiming entitlement to enforce a note or a mortgage has been duly
transferred or assigned rights).
{¶70} Yet, these cases are distinguishable as they did not involve an
argument concerning the pooling and servicing agreement. Rather, they involved
problems with the note or assignment themselves. See George, 10th Dist. No.
14AP-817 (bank submitted contradictory versions of note without satisfactory
explanation). On this particular issue, the Sixth Circuit held a borrower lacks
standing to have mortgage assignments invalidated due to non-compliance with
provisions in a pooling and servicing agreement. Dauenhauer v. Bank of New York
Mellon, 562 F.Appx. 473, 479-80 (6th Cir.2014) (“Courts have consistently rejected
borrowers' requests to have mortgage assignments and foreclosures invalidated due
to non-compliance with Pooling and Servicing Agreement provisions, based on
borrowers' lack of standing.”)
{¶71} For all of these reasons, Appellant’s final argument is overruled. The
trial court’s judgment is affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.