Nationstar Mtge. L.L.C. v. Payne , 2017 Ohio 513 ( 2017 )

[Cite as Nationstar Mtge. L.L.C. v. Payne, 2017-Ohio-513.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Nationstar Mortgage LLC, :
Plaintiff-Appellee, :
No. 16AP-185
v. : (C.P.C. No. 14CV-13435)
Brian K. Payne, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 14, 2017
On brief: Thompson Hine LLP, John B. Kopf and
Michael L. Dillard, Jr., for appellee. Argued: Michael L.
Dillard, Jr.
On brief: Brian K. Payne, pro se.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Brian K. Payne, appeals a judgment of the Franklin
County Court of Common Pleas in favor of plaintiff-appellee, Nationstar Mortgage LLC
("Nationstar"). For the following reasons, we affirm that judgment.
{¶ 2} On December 23, 2014, Nationstar filed a complaint against Payne. The
complaint alleged that Nationstar was the holder of and/or the person entitled to enforce
a promissory note executed by Payne, and that Nationstar was the holder of the mortgage
that secured the note. Additionally, the complaint alleged that Payne had defaulted on the
note and owed Nationstar the balance due. Nationstar sought a monetary judgment,
No. 16AP-185 2
foreclosure of the mortgage, sale of the mortgaged property, and payment of the monetary
judgment from the sale proceeds.
{¶ 3} Nationstar subsequently amended the complaint to add additional
defendants who may possess an interest in the mortgaged property. These additional
defendants failed to answer the amended complaint. Payne, however, answered both the
original and amended complaints.
{¶ 4} On February 1, 2016, Nationstar filed two motions. In the first, Nationstar
sought a default judgment against those defendants who had failed to answer the
complaint. In the second, Nationstar sought summary judgment against Payne.
{¶ 5} To support its motion for summary judgment, Nationstar relied on the
affidavit of Sara P. Afford, a document execution specialist for Nationstar. Afford testified
that the documents attached to her affidavit were true and exact copies of Payne's note
and mortgage, the assignment of the mortgage, the loan payment history, and the demand
letter that Nationstar had sent to Payne. Afford also testified that Payne had defaulted
under the note and mortgage by failing to make payments due. When Payne did not cure
the default, Nationstar accelerated the amount due under the note and mortgage. Payne
owed Nationstar the principal sum of $96,211.65, plus interest at a rate of 5.875 percent
per year from June 1, 2014.
{¶ 6} On February 17, 2016, the trial court entered judgment granting both of
Nationstar's motions. Payne failed to respond to Nationstar's motion for summary
judgment prior to the trial court's judgment. However, after the trial court issued its
judgment, Payne filed a memorandum in opposition to Nationstar's motion for summary
judgment, as well as a cross-motion for summary judgment. The trial court ignored this
belated filing.
{¶ 7} Payne now appeals the February 17, 2016 judgment, and he assigns the
following errors:
[1.] THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT ENTERED DEFAULT JUDGMENT AGAINST MR.
Brian K. Payne, HOLDING HE WAS IN DEFAULT OF
MOTION OR ANSWER.
[2.] WHETHER DEFAULT JUDGMENT CAN BE
PROPERLY ENTERED AGAINST A PARTY (MR. PAYNE)
No. 16AP-185 3
WHOM IS NOT MENTIONED IN THE MOTION FOR
ENTRY OF DEFAULT JUDGMENT.
WHETHER THE TRIAL COURT SHOULD HAVE ENTERED
DEFAULT AGAINST DEFENDANT EVEN THOUGH THE
DEFENDANT WAS NOT NAMED ON THE MOTION TO
ENTER DEFAULT AND FURTHER HE HAD APPEARED IN
THE CASE AND ANSWER THE PLAINTIFF'S AMENDED
COMPLAINT ALONG WITH OTHER PLEADINGS
PREVIOUS TO PLAINTIFF'S AMENDED COMPLAINT.
[3.] A GENUINE ISSUE OF MATERIAL FACT WAS IN
DISPUTE THAT SHOULD HAVE PRECLUDED SUMMARY
JUDGMENT, AND IF NOT, WHETHER THE TRIAL COURT
RULE CORRECTLY ON THE LAW.
[4.] NATIONSTAR'S OWN PROOFS ESTABLISHED
THAT NATIONSTAR IS NOT THE HOLDER OF THE NOTE,
AND THEREFORE LACKS STANDING TO FORECLOSE.
IN ORDER TO HAVE STANDING TO FORECLOSE, A
PLAINTIFF MUST SHOW BOTH (1) THAT THE
DEFENDANT OWES A DEBT TO THE PLAINTIFF AND (2)
THAT THE PLAINTIFF HAS A SECURITY INTEREST IN
THE PROPERTY.
[5.] THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT BECAUSE THERE IS A GENIUNE
ISSUE OF MATERIAL FACT IN RESPECT TO NATIONSTAR
IS THE HOLDER OF THE NOTE AND MORTGAGE.
[6.] TRANSFER OF A NEGOTIABLE INSTRUMENT IS
GOVERN BY THE UNIFORM COMMERCIAL CODE,
REQUIRES PHYSICAL POSSESSION AND INDORSEMENT
OF A NOTE PAYABLE TO ORDER.
[7.] WHETHER NATIONSTAR PROOFS WERE
SUFFICIENT TO SUPPORT ENTRY OF SUMMARY
JUDGMENT AND OR FINAL JUDGMENT.
DEFENDANT EXECUTED A NOTE TO GLOBAL EQUITY,
LENDING, INC., AND MORTGAGE TO MERS. WHERE AS
NATIONSTAR DID NOT PRESENT EVIDENCE AS TO HOW,
WHEN….NOT EVEN A DATE, IF EVER IT BECAME
HOLDER OF THE NOTE ENTITLED TO ENFORCE, ALSO,
NATIONSTAR HAS NOT SHOWN EVIDENCE THAT
No. 16AP-185 4
WOULD ESTABLISH IT AS THE REAL PARTY IN
INTEREST.
[8.] WHETHER PLAINTIFF'S ALLEGED POSSESSION
AND HOLDER OF THE NOTE, SUPPORTED ONLY BY AN
ASSIGNMENT Of MORTGAGE, FAILS TO MEET THE
REQUIREMENTS OF THE UNIFORM COMMERCIAL CODE
AND DOES NOT GIVE RISE TO A CLAIM OF RELIEF
AGAINST THE MAKER OF THE NOTE.
[9.] WHETHER NATIONSTAR'S CLAIM OF POSSESSION
WAS UNSUPPORTED BY COMPETENT EVIDENCE, AND
THEREFORE NATIONSTAR FAILED EVEN TO SHOW
POSSESSION IN THE NOTE.
[10.] AS NATIONSTAR MORTGAGE, LLC FAILED TO
SHOW THAT IT WAS THE HOLDER OF THE NOTE AND
THE ASSIGNEE OF THE MORTGAGE IT IS NOT A PROPER
PARTY TO THE FORECLOSURE ACTION AND LACKS
STANDING TO FORECLOSURE.
[11.] WHETHER MERS BY ITS OWN GUIDELINES HAS
AUTHORITY TO ASSIGN NOTES AND OR MORTGAGES.
[12.] WHETHER GLOBAL EQUITY LENDER INC., GAVE
MERS AUTHORITY TO ASSIGN IT'S MORTGAGE.
[13.] WHETHER SARA P. AFFORD AFFIDAVIT AND
NOTARY HAS A SIGNATURE, AND IF NOT, WHETHER A
MISSING SIGNATURE CONSTITUTES AN IMPROPER
AFFIDAVIT, AND WHETHER THE AFFIANT AVERMENT
IN THAT PURPORTED AFFIDAVIT IS INCOMPETENT
TESTIMONY, AND WHETHER AN INCOMPETENT
TESTIMONY AS TO THE NOTE AND MORTGAGE
CREATES A GENUINE FACTUAL ISSUE IN DISPUTE, AND
WHETHER DEFENDANT HAS TIMELY OBJECTED TO
THE AFFIDAVIT ON THESE GROUNDS, AND THE
AFFIDAVIT SHOULD BE STRIKEN OR WHETHER
SUMMARY JUDGMENT SHOULD BE DENIED PLAINTIFF.
[14.] WHETHER NATIONSTAR PROOFS WERE
SUFFICIENT TO ESTABLISH THAT NATIONSTAR HAD
THE RIGHT TO ENFORCE THE NOTE AND MORTGAGE
AND SUPPORT ENTRY OF SUMMARY JUDGMENT AND
OR FINAL JUDGMENT.
No. 16AP-185 5
[15.] WHETHER DOCUMENTS THAT NATIONSTAR
MORTGAGE, LLC RELIED, UPON IN SUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT TO ESTABLISH ITS
STATUS AS HAVING POSSESSION AND OR HOLDER
WERE PROPERLY CERTIFIED AND AUTHENTICATED.
[16.] WHETHER THE COPIED NOTE AND MORTGAGE
WERE ATTACHED TO AN AFFIDAVIT FOR THE
PURPOSES OF BEING CERTIFIED AND
AUTHENTICATION.
[17.] AND WHETHER THE DEFENDANT IS TIMELY TO
STRIKE THESE PORTIONS OF THE SARA P. AFFORD
AFFIDAVIT NOT IN COMPLIANCE WITH RULE 56(E) AND
RULES OF EVIDENCE.
[18.] WHETHER COPIED NOTE, MORTGAGE,
ASSIGNMENT OF MORTGAGE, PAYMENT HISTORY AND
DEMAND LETTER SATISFIED THE AFFIDAVIT
REQUIREMENTS OF 56(E), WHICH STATES THAT
"DOCUMENTS" ATTACH TO AN AFFIDAVIT MUST BE
CERTIFIED OR SWORN TO, AND IF NOT, WHETHER
DEFENDANT'S MOVE TO STRIKE THIS PORTION OF
SARA P. AFFORD AFFIDAVIT IS TIMELY.
[19.] WHETHER SARA P. AFFORD AFFIDAVIT AT 5
AVERRING THAT….." that true and exact copies of the Note,
Mortgage, Assignment of Mortgage, Payment History and
Demand Letter are attached hereto…." SATISFIED THE
VERIFICATION REQUIREMENTS OF 56(E), WHICH
STATES THAT ….." 'CERTIFIED' COPIES ATTACHED ARE
TRUE AND ACCURATE REPRODUCTIONS OF THE
ORIGINAL"…..IF NOT, WHETHER DEFENDANT'S MOVE
TO STRIKE THIS PORTION OF SARA AFFORD AFFIDAVIT
IS TIMELY [emphasize added].
[20.] WHETHER AN AFFIDAVIT BASED ON PERSONAL
REVIEW OF THE BUSINESS RECORDS PROVIDE A BASIS
FOR AFFIANT TO TESTIFY TO POSSESSION OF THE
NOTE.
[21.] THE TRIAL COURT ERRED BY NOT ALLOWING
DEFENDANT TIME AS REQUIRED BY RULE 56.( C) AND
OR Local Rule 11(I)(1) TO RESPOND TO PLAINTIFF'S
SUMMARY JUDGMENT MOTION PRIOR TO THE TRIAL
COURT ENTERING SUMMARY JUDGMENT.
No. 16AP-185 6
[22.] WHETHER DISCOVERY SHOULD HAVE BEEN
ALLOWED PRIOR TO THE TRIAL COURT ENTERING
SUMMARY JUDGMENT, IF NOT, WHETHER
DEFENDANT'S CROSS-MOTION FILED FEBRUARY 29TH,
2016 AND OTHER PREVIOUS FILINGS WAS TIMELY
FILED; AND NOTWITHSTANDING THE FACT THAT
DEFAULT AND SUMMARY JUDGMENT WAS ENTERED,
WHETHER THIS ENTIRE CASE SHOULD BE RULED AT
THIS TIME IN IT'S ENTIRETY BY APPEAL'S COURT OR
REMAND FOR FURTHER PROCEEDINGS IN RESPECT TO
THE DEFAULT AND OR DISCOVERY.
[23.] IF DEFENDANT SHOULD PREVAIL IN HIS APPEAL-
WHETHER DEFENDANT'S REQUEST FOR ATTORNEY
FEES WAS TIMELY AND PROPER.1
{¶ 8} Before reviewing Payne's assignments of error, we must address the
affidavit that Payne includes in his appellant's brief. Appellate review is limited to the
record as it existed at the time the trial court rendered its judgment. Wiltz v. Clark
Schaefer Hackett & Co., 10th Dist. No. 11AP-64, 2011-Ohio-5616, ¶ 13. Payne's affidavit
was not before the trial court when it issued the judgment on appeal. Consequently, we
will not consider Payne's affidavit when deciding this appeal.
{¶ 9} By his first and second assignments of error, Payne argues that the trial
court erred in granting default judgment against him. Payne misreads the trial court's
judgment. The trial court only granted default judgment against the non-answering
defendants, i.e., Jane Doe, the unknown spouse, if any, of Payne; the Taylor Payne-Bey
Family Development Trust; and John Doe, trustee of the Taylor Payne-Bey Family
Development Trust. The trial court granted summary judgment against Payne. Because
the trial court did not engage in the error Payne alleges, we overrule Payne's first and
second assignments of error.
{¶ 10} The remainder of Payne's assignments of error challenge the trial court's
grant of summary judgment against him. A trial court will grant summary judgment
under Civ.R. 56 when the moving party demonstrates that: (1) there is no genuine issue of
material fact; (2) the moving party is entitled to judgment as a matter of law; and (3)
1 Because Payne did not sequentially number all of his assignments of error, we have renumbered the
assignments of error. We quote Payne's assignments of error verbatim, without correcting any
grammatical errors.
No. 16AP-185 7
reasonable minds can come to but one conclusion when viewing the evidence most
strongly in favor of the nonmoving party, and that conclusion is adverse to the nonmoving
party. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v.
Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial
court's ruling on a motion for summary judgment is de novo. Hudson at ¶ 29. This
means that an appellate court conducts an independent review, without deference to the
trial court's determination. Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521,
2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-
4490, ¶ 6 (10th Dist.).
{¶ 11} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt,
75 Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden
under Civ.R. 56 by simply making conclusory allegations. Id. Rather, the moving party
must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that
there are no genuine issues of material fact and the moving party is entitled to judgment
as a matter of law. Id. If the moving party meets its burden, then the nonmoving party
has a reciprocal burden to set forth specific facts showing that there is a genuine issue for
trial. Civ.R. 56(E); Dresher at 293. If the nonmoving party does not so respond,
summary judgment, if appropriate, shall be entered against the nonmoving party.
Dresher at 293.
{¶ 12} We will begin our review of the assignments of error challenging the grant
of summary judgment with Payne's twenty-first assignment of error. By that assignment
of error, Payne argues that the trial court erred in not providing him 28 days to respond to
Nationstar's motion for summary judgment. We find this argument unavailing.
{¶ 13} Pursuant to Civ.R. 56(C):
[u]nless otherwise provided by local rule or by order of the
court, the adverse party may serve responsive arguments and
opposing affidavits within twenty-eight days after service of [a
summary judgment] motion, and the movant may serve reply
arguments within fourteen days after service of the adverse
party's response.
No. 16AP-185 8
By inserting the clause "[u]nless otherwise provided by local rule or by order of the court"
before the 28-day and 14-day deadlines, Civ.R. 56(C) makes clear that it only provides
default deadlines for the circumstance where no applicable local rule or court order exists.
In other words, the 28-day and 14-day deadlines apply "only in the absence of a local rule
or court order providing times for briefing motions, whether or not the rule or order
specifically addresses summary judgment motions, and does not supersede or affect the
application of local rules or orders addressing briefing on motions." 2015 Staff Notes,
Civ.R. 56.
{¶ 14} Here, Loc.R. 21.01 of the Franklin County Court of Common Pleas, General
Division, sets forth the time periods for responding and replying to motions. In relevant
part, that rule provides that "[t]he opposing counsel or a party shall serve any answer
brief on or before the 14th day after the date of service as set forth on the certificate of
service attached to the served copy of the motion." As Loc.R. 21.01 specifies the deadline
for responding to a motion, that rule applies and limits the amount of time Payne had to
respond to Nationstar's motion for summary judgment to 14 days. See Brisco v. U.S.
Restoration & Remodeling, Inc., 10th Dist. No. 14AP-533, 2015-Ohio-3567, ¶ 12 (quoting
Loc.R. 21.01 and Loc.R. 57.02, and concluding that "the rules provide a party 14 days to
file a brief in opposition to a motion, including filing all evidentiary materials in support
of the responsive pleading"). Accordingly, we overrule Payne's twenty-first assignment of
error.
{¶ 15} By Payne's twenty-second assignment of error, he argues that the trial court
erred in granting Nationstar summary judgment when he still had discovery to conduct.
We disagree.
{¶ 16} Generally, Civ.R. 56(F) provides the sole remedy for a party who must
respond to a motion for summary judgment before it has completed adequate discovery.
Mootispaw v. Mohr, 10th Dist. No. 15AP-885, 2016-Ohio-1246, ¶ 10; Commons at Royal
Landing, LLC v. Whitehall, 10th Dist. No. 15AP-240, 2016-Ohio-362, ¶ 8. Pursuant to
Civ.R. 56(F), a party may request that the trial court defer ruling on the motion for
summary judgment pending the completion of discovery. Mootispaw at ¶ 10; Commons
at Royal Landing at ¶ 9. When a party fails to move for a Civ.R. 56(F) continuance, a trial
court may grant summary judgment to the moving party even if discovery remains
No. 16AP-185 9
incomplete. Mootispaw at ¶ 10; Commons at Royal Landing at ¶ 11. Moreover, the party
that fails to move for a Civ.R. 56(F) continuance does not preserve his right to challenge
the adequacy of discovery on appeal. Mootispaw at ¶ 10.
{¶ 17} Here, Payne did not move for a continuance under Civ.R. 56(F).
Consequently, the trial court did not err in granting Nationstar summary judgment on its
claims against him, even though Payne had not obtained the discovery he sought or
planned to seek. Accordingly, we overrule Payne's twenty-second assignment of error.
{¶ 18} We next turn to the assignments of error that attack the evidence that
Nationstar relied upon to prove its entitlement to summary judgment. By these
assignments of error, Payne essentially asserts three arguments. First, by his thirteenth
assignment of error, Payne argues that Afford's affidavit is invalid because neither Afford
nor a notary public signed the affidavit. Second, by his ninth, fourteenth, fifteenth,
sixteenth, eighteenth, and nineteenth assignments of error, Payne argues that the trial
court erred in considering the documents attached to Afford's affidavit because Afford did
not have the personal knowledge necessary to authenticate them. Third, by his
seventeenth and twentieth assignments of error, Payne argues that the trial court erred in
considering any of Afford's affidavit testimony because she lacked the personal knowledge
necessary to testify to the facts she set forth in her affidavit. Each of these assignments of
error fail because they suffer a fundamental flaw: Payne waived them when he failed to
timely object to Nationstar's evidence.
{¶ 19} " 'Ordinarily, reviewing courts do not consider questions not presented to
the court whose judgment is sought to be reversed.' " State ex rel. Quarto Mining Co. v.
Foreman, 79 Ohio St.3d 78, 81 (1997), quoting Goldberg v. Indus. Comm., 131 Ohio St.
399, 404 (1936). A party waives the ability to argue on appeal any error which it could
have called, but did not call, to the trial court's attention at a time when the trial court
could have avoided or corrected that error. Id.; accord Limle v. Laboratory Corp. of Am.,
137 Ohio App.3d 434, 437 (10th Dist.2000) ("The failure to timely advise a trial court of
possible error, by objection or otherwise, results in a waiver of the issue for purposes of
appeal.").
{¶ 20} When moving for summary judgment, a party must direct the trial court to
evidentiary materials of the type listed in Civ.R. 56(C). Giffin v. Crestview Cadillac, 10th
No. 16AP-185 10
Dist. No. 09AP-278, 2009-Ohio-6569, ¶ 38. Civ.R. 56(C) limits the material a trial court
can consider to "pleadings, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact, if any." Civ.R. 56(C). A
party who wishes to rely on a document not listed in Civ.R. 56(C) must incorporate that
document into an affidavit. Giffin at ¶ 38. To incorporate attached evidentiary exhibits,
an affidavit need only state that the attached exhibits are true copies of the original
documents. Civ.R. 56(E); Am. Express Travel Related Servs. v. Silverman, 10th Dist. No.
06AP-338, 2006-Ohio-6374, ¶ 12.
{¶ 21} Despite the dictates of Civ.R. 56(C), a trial court may consider evidence not
specifically listed if the adverse party fails to timely object to that evidence. State ex rel.
Gilmour Realty, Inc. v. Mayfield Heights, 122 Ohio St.3d 260, 2009-Ohio-2871, ¶ 17;
accord Columbus v. Bahgat, 10th Dist. No. 10AP-943, 2011-Ohio-3315, ¶ 16 ("Absent an
objection, a trial court has the discretion to consider unauthenticated documents when
rendering summary judgment."). Moreover, failure to timely move to strike or otherwise
object to non-Civ.R. 56(C) evidence waives any error arising from the trial court's
consideration of that evidence. Bradley v. Ohio Dept. of Transp., 10th Dist. No. 13AP-
918, 2014-Ohio-3205, ¶ 21; Timberlake v. Jennings, 10th Dist. No. 04AP-462, 2005-
Ohio-2634, ¶ 14.
{¶ 22} Affidavits offered in support of or in opposition to summary judgment
"shall be made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated in the affidavit." Civ.R. 56(E). A trial court, however, may consider
affidavits that do not comply with the Civ.R. 56(E) requirements when no timely objection
to the affidavit is raised. Citizens Banking Co. v. Parsons, 10th Dist. No. 11AP-480, 2014-
Ohio-2781, ¶ 17; New Falls Corp. v. Russell-Seitz, 10th Dist. No. 08AP-397, 2008-Ohio-
6514, ¶ 10. Additionally, a party who fails to timely argue to the trial court that an affiant
lacks personal knowledge waives that argument on appeal. Parsons at ¶ 17; Russell-Seitz
at ¶ 12.
{¶ 23} Here, in his memorandum in opposition to summary judgment, Payne
argued that Afford lacked the personal knowledge necessary (1) to authenticate the note,
mortgage, and assignment of the mortgage and (2) to testify that Nationstar possessed the
No. 16AP-185 11
note. Payne, however, did not file his memorandum in opposition until after the trial
court had granted Nationstar summary judgment. Thus, by the time Payne raised his
objections, the trial court had entered a final judgment and, consequently, could neither
avoid nor correct the alleged error. Payne, therefore, waived all arguments premised on
Afford's alleged lack of personal knowledge, and the trial court did not err in considering
Afford's affidavit or the documents attached to it. Accordingly, we overrule Afford's ninth
and fourteenth through twentieth assignments of error.
{¶ 24} Payne never argued below that Afford's affidavit lacked both the affiant's
and the notary public's signatures. Payne, therefore, waived that argument for purposes
of appeal, and we will not address it. Accordingly, we overrule Payne's thirteenth
assignment of error.
{¶ 25} Payne makes one final attack against Afford's affidavit. He incorporates
into his appellant's brief a motion to strike Afford's affidavit, which repeats the same
arguments that he raises in his ninth and thirteenth through twentieth assignments of
error. For the same reasons we set forth above, we deny Payne's motion to strike.
{¶ 26} By his third, fifth, and sixth assignments of error, Payne argues that the trial
court erred in granting Nationstar summary judgment because Nationstar failed to
establish itself as the person entitled to enforce Payne's note. We disagree.
{¶ 27} In order to prevail in a foreclosure action, a plaintiff must prove that it is the
person entitled to enforce the defendant's note. CitiMortgage, Inc. v. Taylor, 10th Dist.
No. 15AP-726, 2016-Ohio-8337, ¶ 18. A plaintiff qualifies as a "[p]erson entitled to
enforce" a negotiable instrument if the plaintiff is "[t]he holder of the instrument." R.C.
1303.31(A)(1). The definition of "holder" varies depending on whether the negotiable
instrument at issue is made payable to a particular person or not. If the instrument is
payable to bearer, the holder is the person in possession of that instrument. R.C.
1301.01(T)(21)(a).2 If the instrument is payable to an identified person, the holder is the
identified person when in possession of the instrument. R.C. 1303.01(T)(21)(b).
2 Effective June 29, 2011, Am.H.B. No. 9, 2011 Ohio Laws File 9, repealed R.C. 1301.01, amended the
provisions of R.C. 1301.01, and renumbered that section so it now appears at R.C. 1301.201. R.C. 1301.201
only applies to transactions entered into after the effective date of that statute. Payne executed the note at
issue in this case on December 20, 2004, well before the June 29, 2011 effective date of R.C. 1301.201.
Consequently, we apply R.C. 1301.01 to this appeal.
No. 16AP-185 12
{¶ 28} A person can become a holder of a negotiable instrument when (1) the
instrument is issued to that person or (2) a holder transfers the instrument to that person
through negotiation. Uniform Commercial Code Official Comment (1990), Section 3-201,
Comment 1. With one inapplicable exception, "if an instrument is payable to an identified
person, negotiation requires transfer of possession of the instrument and its indorsement
by the holder." R.C. 1303.21(B). An "indorsement" is "a signature, other than that of a
signer as maker, drawer, or acceptor, that alone or accompanied by other words is made
on an instrument [to accomplish] * * * negotiat[ion] [of] the instrument." R.C.
1303.24(A)(1)(a). A holder may make either a special or blank indorsement. Uniform
Commercial Code Official Comment (1990), Section 3-205, Comment 2. A "special
indorsement" is an indorsement that identifies the person to whom the indorsement
makes the instrument payable, while a "blank indorsement" is any indorsement that is not
a special indorsement. R.C. 1303.25(A) and (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." R.C. 1303.25(B).
{¶ 29} To identify the holder of a particular note, courts must first examine the face
of the note, as well as any indorsements. Bank of Am., N.A. v. Pasqualone, 10th Dist. No.
13AP-87, 2013-Ohio-5795, ¶ 32. In the note at issue in this case, Payne agreed to pay
$96,300 to Global Equity Lending, Inc., thus making Global Equity Lending the original
holder of Payne's note. Payne's note, however, did not remain in Global Equity Lending's
hands for long, as evidenced by two indorsements on the note.
{¶ 30} Payne disregards both indorsements, arguing that they have no evidentiary
value because they lack verification. We are not persuaded by this argument. In order to
challenge the authenticity of, or the authority to make, a signature on an instrument, a
defendant must specifically deny the validity of the signature in its answer. R.C.
1303.36(A); Romano's Carryout, Inc. v. P.F. Chang's China Bistro, Inc., 196 Ohio App.3d
648, 2011-Ohio-4763, ¶ 13 (10th Dist.). Absent a specific denial, the defendant admits to
the validity of the signature. R.C. 1303.36(A). Here, because Payne failed to specifically
deny the indorsements' validity in his answers to both the original and amended
complaints, Payne conceded to the indorsements' validity and cannot challenge it now.
Thus, we turn to the indorsements to determine who holds Payne's note.
No. 16AP-185 13
{¶ 31} In the first indorsement, dated December 20, 2004, Global Equity Lending
indorsed the note to Flagstar Bank, FSB. This first indorsement is a special indorsement
because it identified the person, i.e., Flagstar Bank, to whom the indorsement made the
note payable.
{¶ 32} The second, undated indorsement was signed by two individuals and stated:
PAY TO THE ORDER OF
WITHOUT RECOURSE
FLAGSTAR BANK, FSB
(Ex. A-1, Afford Aff.) Because this second indorsement did not identify the person to
whom it made the note payable, it is a blank indorsement. Once Flagstar Bank indorsed
the note in blank, the note became payable to bearer. R.C. 1303.25(B). The holder of a
note payable to bearer is the person who possesses the note. R.C. 1301.01(T)(21)(a).
Afford testified that Nationstar possesses Payne's note. Thus, between the note and
Afford's affidavit testimony, Nationstar presented sufficient evidence to prove that it is the
holder of Payne's note. See Wells Fargo Bank, N.A. v. Odita, 10th Dist. No. 13AP-663,
2014-Ohio-2540, ¶ 10 (because the note at issue was indorsed in blank, the bank could
establish its status as holder of the note by proving that it was in possession of the note);
JPMorgan Chase Bank, N.A. v. Fallon, 4th Dist. No. 13CA3, 2014-Ohio-525, ¶ 14 (same);
Pasqualone, 10th Dist. No. 13AP-87, 2013-Ohio-5795, at ¶ 33 (same). As holder of
Payne's note, Nationstar is the person entitled to enforce that note upon Payne's default.
Consequently, we overrule Payne's third, fifth, and sixth assignments of error.
{¶ 33} By his eighth assignment of error, Payne argues that Nationstar cannot rely
on the assignment of the mortgage to establish itself as holder of the note. The
assumption underlying Payne's argument is wrong; Nationstar does not premise its status
as holder of Payne's note on the mortgage assignment. As we just explained above,
Nationstar qualifies as the holder of Payne's note because the note is endorsed in blank
and Nationstar has possession of it. Accordingly, we overrule Payne's eighth assignment
of error.
{¶ 34} By his eleventh and twelfth assignments of error, Payne argues that
Mortgage Electronic Registration System, Inc. ("MERS") lacked the authority to assign
Payne's mortgage to Nationstar. We disagree.
No. 16AP-185 14
{¶ 35} The mortgage that secures Payne's note names MERS as mortgagee and
explains that "MERS is a separate corporation that is acting solely as a nominee for
Lender and Lender's successors and assigns." (Ex. A-2 at 1, Afford Aff.) The mortgage
identifies Global Equity Lending as "Lender." By executing the mortgage, Payne
"mortgage[d], grant[ed] and convey[ed] to MERS (solely as nominee for Lender and
Lender's successors and assigns) and to the successors and assigns of MERS" the property
located at 2860 Barrows Road. Id. at 3. Payne also agreed that MERS had the right to
exercise any of the legal interests granted by Payne to MERS in the mortgage.
{¶ 36} MERS recorded the mortgage with the Franklin County Recorder on
January 24, 2005. Over nine years later, on November 28, 2014, MERS, in its capacity as
nominee for Global Equity Lending, executed an assignment of the mortgage to
Nationstar. Nationstar recorded the assignment on December 1, 2014.
{¶ 37} Under well-settled Ohio law, MERS has the authority to assign a mortgage
when that mortgage designates MERS as both nominee and mortgagee. Bank of New
York Mellon v. Argo, 5th Dist. No. 14CA59, 2015-Ohio-268, ¶ 19; Wells Fargo Bank, N.A.
v. Geiser, 12th Dist. No. CA2013-06-103, 2014-Ohio-3379, ¶ 16; BAC Home Loans
Servicing, L.P. v. Haas, 3d Dist. No. 9-13-40, 2014-Ohio-438, ¶ 28. Here, because MERS
fulfilled the dual roles of nominee and mortgagee, it had the authority to assign Payne's
mortgage to Nationstar. Accordingly, we overrule Payne's eleventh and twelfth
assignments of error.
{¶ 38} By his fourth, seventh, and tenth assignments of error, Payne argues that
the trial court erred in granting Nationstar summary judgment because Nationstar lacked
standing to pursue its action against him. We disagree.
{¶ 39} "[T]he fundamental requirement of standing is that the party bringing the
action must have a personal stake in the outcome of the controversy, i.e., that it must be
the injured party." Deutsche Bank Natl. Trust Co. v. Holden, 147 Ohio St.3d 85, 2016-
Ohio-4603, ¶ 32. Standing is a jurisdictional requirement; a party's lack of standing
vitiates the party's ability to invoke the jurisdiction of a court over the party's action.
Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 22. However, a party's
lack of standing deprives a court of jurisdiction over a particular case, not subject-matter
jurisdiction. Id. Subject-matter jurisdiction is the power of a court to hear a particular
No. 16AP-185 15
class of cases. Id. at ¶ 19. A court's jurisdiction over a particular case refers to the court's
authority to proceed or rule on a specific case that is within the court's subject-matter
jurisdiction. Id. Any error in the exercise of jurisdiction over a particular case causes a
judgment to be voidable rather than void. Id.; In re J.J., 111 Ohio St.3d 205, 2006-Ohio-
5484, ¶ 15. Additionally, when an opposing party fails to timely raise a challenge to a
court's jurisdiction over a particular case, that alleged error is waived and not preserved
for appeal. Id.{¶ 40} In the case at bar, Payne failed to file any timely response to Nationstar's
motion for summary judgment, so, consequently, he did not timely assert the lack of
standing as a basis for denying Nationstar summary judgment. Normally, Payne's failure
to timely assert the lack of standing would result in waiver of the argument on appeal.
Payne, however, did assert that Nationstar lacked standing in his answer to the amended
complaint, and he moved for dismissal on that basis.3 Therefore, we will consider Payne's
standing argument on appeal.
{¶ 41} Typically, a foreclosure action consists of a legal action to collect on the
defaulted note together with an equitable action to force a sale of the mortgaged property.
Holden at ¶ 5. In such an action, "[t]he person entitled to enforce the note pursuant to
R.C. 1303.31 has standing to seek a personal judgment against the promisor on that
obligation, while the mortgagee or its successor and assign has standing to foreclose on
the mortgage." Id. at ¶ 35. The plaintiff must possess the requisite stake in the action on
the date that it files the action. Federal Home Loan Mtge. Corp. v. Schwartzwald, 134
Ohio St.3d 13, 2012-Ohio-5017, ¶ 24-25.
{¶ 42} Here, as we discussed above, Nationstar established itself as the person
entitled to enforce Payne's note because the note is endorsed in blank and Nationstar
possesses it. In addition to testifying to Nationstar's current possession of the note,
Afford also stated in her affidavit that "Nationstar had physical possession of the original
Note at the time the Complaint was filed." (Afford Aff. at ¶ 6.) Given this testimony,
Nationstar was the person entitled to enforce Payne's note at the time it filed the
complaint, and thus, it had standing to seek a legal judgment on the note.
3 The trial court never ruled on this motion. The trial court likely overlooked the motion because Payne
incorporated it into his answer instead of filing it as a separate document.
No. 16AP-185 16
{¶ 43} Payne's mortgage names MERS, acting solely as nominee for Global Equity
Lending, as the mortgagee. On November 28, 2014, MERS assigned Nationstar the
mortgage, which made Nationstar the holder of the mortgage when Nationstar filed its
foreclosure action on December 23, 2014. Nationstar, therefore, proved its standing to
seek an equitable judgment for foreclosure of the mortgage.
{¶ 44} In sum, Nationstar had standing to invoke the jurisdiction of the trial court
because it possessed the necessary interest in the note and mortgage on the date it filed its
complaint. Accordingly, we overrule Payne's fourth, seventh, and tenth assignments of
error.
{¶ 45} By his twenty-third assignment of error, Payne argues that he should
receive his attorney fees if he prevails on this appeal. Because Payne has not prevailed on
this appeal, the twenty-third assignment of error is moot, and thus, we will not rule on it.
{¶ 46} For the foregoing reasons, we overrule Payne's first through twenty-second
assignments of error. Our ruling on those assignments of error moots the twenty-third
assignment of error. We deny Payne's motion to strike, and we affirm the judgment of the
Franklin County Court of Common Pleas.
Judgment affirmed;
motion denied.
TYACK, P.J., and SADLER, J., concur.