Wells Fargo Bank, N.A. v. Byers

[Cite as Wells Fargo Bank, N.A. v. Byers, 2014-Ohio-3303.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Wells Fargo Bank, N.A., :
Plaintiff-Appellee, :
No. 13AP-767
v. : (C.P.C. No. 11CV-01-15079)
Sonia Anne Byers, : (REGULAR CALENDAR)
Defendant-Appellant, :
John Doe, unknown spouse, if any, of :
Sonia Anne Byers et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on July 29, 2014
Thompson Hine LLP, Scott A. King, and Terrance A. Mebane,
for appellee Wells Fargo Bank, N.A.
Sonia Anne Byers, pro se.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} Sonia Anne Byers, defendant-appellant, appeals the judgment of the
Franklin County Court of Common Pleas, in which the court granted the motion for
summary judgment filed by Wells Fargo Bank, N.A. ("Wells Fargo"), plaintiff-appellee.
{¶ 2} To assist in understanding the respective paths of the promissory note
("note") and mortgage involved in the present case, we will set out their courses
separately, although they sometimes were purportedly conveyed simultaneously in the
No. 13AP-767 2
same document. On June 25, 1992, Byers executed a note payable to Yerke Mortgage
Company ("Yerke"). On June 25, 1992, Yerke executed a written "Assignment of Note and
Real Estate Mortgage," assigning the note to BancOhio, National Bank ("BancOhio"). On
June 30, 1992, Yerke indorsed the note to Barclays American Mortgage Corporation
("Barclays"), even though Yerke had purportedly assigned the note to BancOhio on
June 25, 1992. On August 5, 1992, BancOhio executed a written "Assignment of Note and
Real Estate Mortgage," assigning the note to Yerke. Barclays indorsed the note to Norwest
Mortgage, Inc. ("Norwest"). Norwest indorsed the note to Bank United ("BU"). BU
indorsed the note "in blank," which means the indorsement was not made to a specific
person but became payable to bearer. Wells Fargo came into possession of the note.
{¶ 3} The note was secured by a mortgage in favor of Yerke on property at 2963
Oaklawn Street, Columbus, Ohio. On June 25, 1992, Yerke assigned the mortgage to
BancOhio via a written "Assignment of Note and Real Estate Mortgage." On June 30,
1992, Yerke assigned the mortgage to Barclays via a written "Assignment," even though
Yerke had already assigned the mortgage on June 25, 1992 to BancOhio. On August 5,
1992, BancOhio assigned the mortgage back to Yerke via a written "Assignment of Note
and Real Estate Mortgage."
{¶ 4} On February 27, 1996, Barclays assigned the mortgage to Norwest via a
written "Assignment of Mortgage/Deed of Trust/Deed to Secure Debt." On July 31, 1998,
Norwest assigned the mortgage to BU via a written "Assignment of Mortgage." On
November 4, 2011, the Federal Deposit Insurance Corporation, as receiver for
Washington Mutual Bank, f/k/a Washington Mutual Bank, F.A., successor by merger to
BU, assigned the mortgage to Wells Fargo via a "Corporate Assignment of Mortgage."
{¶ 5} Byers quit paying under the note and mortgage. On December 5, 2011,
Wells Fargo filed a complaint in foreclosure against Byers, who filed an answer and
counterclaim. On February 22, 2012, Wells Fargo filed a motion to dismiss the
counterclaim. On March 4, 2012, Byers filed a motion to dismiss. On October 8, 2012,
Wells Fargo filed a motion for summary judgment. On December 30, 2012, Byers filed
two motions to dismiss, a motion for leave to file another motion to dismiss, and a motion
in limine to exclude evidence.
No. 13AP-767 3
{¶ 6} On July 26, 2013, the trial court granted Wells Fargo's motion to dismiss
Byers' counterclaim, granted Wells Fargo's motion for summary judgment, and denied or
found moot Byers' other pending motions. The trial court concluded that, although there
was a break in the assignments of the mortgage because Yerke did not have any interest in
the mortgage when it assigned it to Barclays after it previously assigned it to BancOhio,
the valid negotiation of a note operated as an equitable assignment of the mortgage. On
August 20, 2013, the trial court issued a judgment entry, journalizing its July 26, 2013
entry. Byers appeals the judgment of the trial court, asserting the following assignment of
error:
[THE] TRIAL COURT ERRED IN ENTERING SUMMARY
JUDGMENT IN FAVOR OF PLAINTIFF AND IN DENYING
APPELLANT'S MOTIONS TO DISMISS FOR LACK OF
STANDING VOID EVIDENCE IN SUPPORT THEREOF.
{¶ 7} Byers argues in her assignment of error that the trial court erred when it
granted summary judgment in favor of Wells Fargo. Summary judgment is appropriate
when the moving party demonstrates that: (1) there is no genuine issue of material fact,
(2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds
can come to but one conclusion when viewing the evidence most strongly in favor of the
non-moving party, and that conclusion is adverse to the non-moving party. Hudson v.
Petrosurance, Inc., 127 Ohio St. 3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc.,
116 Ohio St. 3d 158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a
motion for summary judgment is de novo. Hudson at ¶ 29. This means that an appellate
court conducts an independent review, without deference to the trial court's
determination. Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App. 3d 521, 2011-Ohio-832,
¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App. 3d 807, 2009-Ohio-4490, ¶ 6 (10th
Dist.).
{¶ 8} When seeking summary judgment on the ground that the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
non-moving party's claims. Dresher v. Burt, 75 Ohio St. 3d 280, 293 (1996). The moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
No. 13AP-767 4
conclusory allegation that the non-moving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
Id. If the moving party meets its burden, then the non-moving party has a reciprocal
burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R.
56(E); Dresher at 293. If the non-moving party does not so respond, summary judgment,
if appropriate, shall be entered against the non-moving party. Id.
{¶ 9} In the present case, Byers argues that Wells Fargo did not have standing
upon its filing of the complaint and was not the holder of the note and mortgage. Byers
contends that when Yerke transferred the note and mortgage to BancOhio on June 25,
1992, via a written assignment, without indorsing the transfer on the note, BancOhio
became a person entitled to enforce the note. Thus, Byers argues, when Yerke transferred
the note and mortgage to Barclays on June 30, 1992, Yerke was not a person entitled to
enforce the note, thereby making that transfer and all subsequent transfers of the note
and mortgage also ineffective. Byers also contends that the doctrine of equitable
assignment does not make Wells Fargo a person entitled to enforce the note.
{¶ 10} In Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St. 3d 13, 2012-
Ohio-5017, the Supreme Court of Ohio held that standing is a jurisdictional prerequisite
before common pleas courts can proceed with foreclosure actions. Id. at ¶ 22-28.
Generally, we review issues of subject-matter jurisdiction de novo. See Yu v. Zhang, 175
Ohio App. 3d 83, 2008-Ohio-400, ¶ 16 (2d Dist.).
{¶ 11} If a note is negotiable under R.C. 1303.03(A), Chapter 1303, Ohio's version
of Article III of the Uniform Commercial Code, will apply. Bank of Am., N.A. v.
Pasqualone, 10th Dist. No. 13AP-87, 2013-Ohio-5795, ¶ 27-28. It is generally recognized
by Ohio courts that a note secured by a mortgage is a negotiable instrument. Id. at ¶ 29,
citing U.S. Bank Natl. Assn. v. Gray, 10th Dist. No. 12AP-953, 2013-Ohio-3340, ¶ 23;
Wright-Patt Credit Union, Inc. v. Byington, 6th Dist. No. E-12-002, 2013-Ohio-3963,
¶ 11; U.S. Bank, N.A. v. Bennett, 7th Dist. No. 11 MA 40, 2012-Ohio-2700, ¶ 19. Thus, a
note secured by a mortgage is governed by R.C. Chapter 1303.
{¶ 12} In order to have standing to bring a foreclosure case, the plaintiff must
demonstrate that it has an interest in either the promissory note or mortgage. Gray at
No. 13AP-767 5
¶ 27; Fed. Home Loan Mtge. Corp. v. Koch, 11th Dist. No. 2012-G-3084, 2013-Ohio-4423,
¶ 24, citing Fed. Home Loan Mtge. Corp. v. Rufo, 11th Dist. No. 2012-A-0011, 2012-Ohio-
5930, ¶ 18. Standing to enforce a note gives a party standing to enforce the mortgage.
Gray at ¶ 32-35.
{¶ 13} A party has standing to invoke the court's jurisdiction if, at the time the
complaint is filed, the party is a holder of the note. Bank of Am., N.A. v. Harris, 8th Dist.
No. 99272, 2013-Ohio-5749, ¶ 8-10. R.C. 1303.31(A) identifies three "persons" entitled to
enforce an instrument: (1) the holder of the instrument, (2) a non-holder in possession of
the instrument who has the rights of a holder, and (3) a person not in possession of the
instrument who is entitled to enforce the instrument pursuant to R.C. 1303.38 or
1303.58(D). R.C. 1301.201(B)(21)(a) defines a holder of a negotiable instrument as "[t]he
person in possession of a negotiable instrument that is payable either to bearer or to an
identified person that is the person in possession." Determining whether a plaintiff-
creditor is a holder requires physical examination of both the face of the note and any
indorsements.
{¶ 14} In the present case, Wells Fargo submitted an affidavit averring that it had
possession of the note and that the copy it presented is true and correct. The note
contained four indorsements: (1) Yerke indorsed the note to Barclays, (2) Barclays
indorsed the note to Norwest, (3) Norwest indorsed the note to BU, and (4) BU indorsed
the note in blank. A blank indorsement makes the instrument payable to the bearer
pursuant to R.C. 1303.25(B). Therefore, because Wells Fargo was in possession of the note
that was payable to bearer, it was the holder under R.C. 1301.201(B)(21)(a). As the holder
of the note, Wells Fargo was a person entitled to enforce the note pursuant to R.C.
1303.31(A)(1) and had standing to invoke the trial court's jurisdiction.
{¶ 15} Notwithstanding, Byers counters that Wells Fargo could not have been a
person entitled to enforce the note because Yerke's prior indorsement of the note to
Barclays on June 30, 1992 was invalid, given Yerke had already assigned the note to
BancOhio on June 25, 1992 via the written assignment. Byers contends that, through the
written assignment, BancOhio became the person entitled to enforce the note, and Yerke
was no longer a person entitled to enforce the note and could not effectuate a transfer.
No. 13AP-767 6
{¶ 16} However, Yerke's assignment of the note to BancOhio did not affect the
validity of its subsequent indorsement of the note to Barclays. 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).
{¶ 17} In the present case, there is no evidence that Yerke's written assignment of
the note included a negotiation or transfer of the note to BancOhio. The record is devoid
of evidence that Yerke ever physically delivered or transferred possession of the note to
BancOhio. Thus, Yerke did not assign the note or assign the right to enforce the note as a
holder thereof to BancOhio. At most, Yerke's execution of the June 25, 1992 written
assignment created a claim of ownership in the note in BancOhio. Instead, it was Yerke's
June 30, 1992 negotiation of the note to Barclays that assigned Yerke's right to enforce the
note to Barclays. Barclays then negotiated the note to Norwest, who indorsed the note to
BU, who then indorsed the note "in blank." Wells Fargo then took possession of the note.
Therefore, we find that Wells Fargo was the holder of the note and a person entitled to
enforce the note.
{¶ 18} Furthermore, negotiation of a note secured by a mortgage operates as an
equitable assignment of the mortgage, even though the mortgage is not assigned or
delivered. Pasqualone at ¶ 39, citing Gray at ¶ 32. "In other words, '[t]he physical transfer
of the note endorsed in blank, which the mortgage secures, constitutes an equitable
assignment of the mortgage, regardless of whether the mortgage is actually (or validly)
assigned or delivered.' " Gray at ¶ 32, quoting Deutsche Bank Natl. Trust Co. v. Najar,
8th Dist. No. 98502, 2013-Ohio-1657, ¶ 65. As explained above, the evidence
No. 13AP-767 7
demonstrates that Wells Fargo had possession of the note, bearing a blank indorsement
from BU, when the complaint was filed. Therefore, consistent with the trial court's
finding, the negotiation of the note from BU to Wells Fargo constituted an equitable
assignment of the mortgage. See Gray at ¶ 34; Pasqualone at ¶ 40.
{¶ 19} Byers also argues that Wells Fargo's alleged allonge to her note was a nullity
due to its improper attachment to the note, and because the indorsements were undated
and broken. "An allonge is defined as '[a] slip of paper sometimes attached to a negotiable
instrument for the purpose of receiving further indorsements when the original paper is
filled with indorsements.' " HSBC Bank USA v. Thompson, 2d Dist. No. 23761, 2010-
Ohio-4158, ¶ 56, citing Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 577
(2010), fn. 7, quoting Black's Law Dictionary (9th Ed.2009). " 'The use of an allonge to
add indorsements to an instrument when there is no room for them on the instrument
itself dates from early common law.' " Id., quoting Southwestern Resolution Corp. v.
Watson, 964 S.W.2d 262, 263 (Tex.1997). R.C. 1303.24(A)(2) provides that the allonge
must be "affixed" to the instrument in order for the signature to be considered part of the
instrument.
{¶ 20} Initially, from the record before us, we are unable to determine if the
indorsements by Barclays, Norwest, and BU were on an allonge to the note or on the
original note. The record before us is an electronic file, which prevents us from examining
the original papers. However, the final three indorsements appear on the fourth page of
the note, and the first three pages of the note are labeled "Page 1 of 3," "Page 2 of 3," and
"Page 3 of 3." The fourth page does not contain any pagination. Thus, it was either an
allonge, a blank page that was actually attached to the original note, or the back side of
one of the original pages of the note. Importantly, we can find no reference in the record
that the note contained an allonge, and the trial court never made any finding or even
mentioned that the final three indorsements were on an allonge. Equally unobvious from
the record before us is whether the fourth page was "affixed" to the note. Therefore, Byers
has failed to demonstrate any error before this court in these respects.
{¶ 21} Nevertheless, as for the remaining arguments, there is no requirement that
indorsements on a negotiable instrument be dated. Wells Fargo Bank, N.A. v.
Roehrenbeck, 5th Dist. No. 13 CA 29, 2013-Ohio-5498, ¶ 15. Furthermore, Byers does not
No. 13AP-767 8
develop her argument that the note was missing "unbroken sequential indorsements." We
have already addressed the indorsements and found them to be valid. For all of the
foregoing reasons, we find the trial court did not err when it found Wells Fargo had
standing to bring the present foreclosure action against Byers. Therefore, we overrule
Byers' assignment of error.
{¶ 22} Accordingly, Byers' assignment of error is overruled, and the judgment of
the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER, P.J., and TYACK, J., concur.
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