Bank of Am., N.A. v. Barber

[Cite as Bank of Am., N.A. v. Barber, 2013-Ohio-4103.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
BANK OF AMERICA, NA, SUCCESSOR : OPINION
BY MERGER TO BAC HOME LOANS
SERVICING, L.P., f.k.a. COUNTRYWIDE :
HOME LOANS SERVICING, L.P., CASE NO. 2013-L-014
:
Plaintiff-Appellee,
:
- vs -
:
JEFFREY B. BARBER, et al.,
:
Defendants-Appellants.
:
Civil Appeal from the Lake County Court of Common Pleas, Case No. 12CF000383.
Judgment: Affirmed.
Eric T. Deighton, Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 24755 Chagrin
Boulevard, Suite 200, Cleveland, OH 44122-5690 (For Plaintiff-Appellee).
David N. Patterson, 33579 Euclid Avenue, Willoughby, OH 44094-3199 (For
Defendants-Appellants).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellants, Jeffrey B. Barber, et al., appeal the summary judgment of
foreclosure entered in favor of Appellee, Bank of America, NA, successor by merger to
BAC Home Loans Servicing, L.P., f.k.a. Countrywide Home Loans Servicing, L.P.
(“BAC”), by the Lake County Court of Common Pleas. At issue is whether any genuine
issue of material fact existed regarding whether BAC had standing when it filed this
mortgage foreclosure action. For the reasons that follow, the trial court's judgment is
affirmed.
{¶2} On or about June 30, 2010, Appellant, Jeffrey B. Barber, purchased a
home in Eastlake, Ohio. He applied for and received a residential home loan from BAC
in the amount of $88,500. In return for the loan, he executed a promissory note in that
amount in favor of BAC. In order to secure the loan, Appellant Barber executed a
mortgage in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), acting
solely as nominee for the lender BAC.
{¶3} Subsequently, Appellant Barber defaulted on the note by failing to make
payments due for September 1, 2011, or any subsequent installments, and the amount
owed was accelerated. On December 13, 2011, MERS assigned said mortgage to
BAC.
{¶4} On February 14, 2012, BAC filed this action in foreclosure against
Appellant Barber and his spouse, Jane Doe. BAC alleged that it was the holder of the
note; that, due to Appellant Barber’s default, it declared said debt due; and that the
amount owed on said loan is in the principal amount of $87,291. BAC attached copies
of the note, mortgage, and assignment of the mortgage to the complaint.
{¶5} On April 10, 2010, Appellant Barber and his wife, Appellant Kathleen E.
Joliffe, filed their joint answer, denying the material allegations of the complaint and
asserting various affirmative defenses, including BAC’s alleged lack of standing.
{¶6} On April 24, 2012, BAC filed a motion for summary judgment against
appellants. In support of said motion, BAC filed the affidavit of Betty J. Marion, an
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assistant vice president of BAC, stating that BAC holds the subject note; that Appellant
Barber defaulted on the note by failing to make payments due for September 1, 2011, or
any subsequent installments; that the debt has been accelerated; and that the principal
balance due under said note is $87,292.
{¶7} Appellants filed a brief in opposition to BAC’s motion for summary
judgment. Appellants did not file any affidavits or other evidentiary materials in support
of their brief. In opposition to summary judgment, appellants argued that BAC failed to
show it had standing; that BAC failed to give notice of default prior to acceleration; and
that BAC failed to present an affidavit or other evidence of Appellant Barber’s default.
{¶8} On January 8, 2013, the trial court entered summary judgment and a
decree in foreclosure against appellants. The court found the note and assignment of
the mortgage attached to the complaint established that BAC had standing. The court
found that appellants referenced no evidence that BAC failed to give them notice of
default before acceleration. Finally, the court found that BAC submitted an affidavit
evidencing the amount owed under the note.
{¶9} The trial court issued an order of sale. On January 25, 2013, appellants
filed a motion to vacate the order of sale and to withdraw the property from sale, which
the trial court denied.
{¶10} Appellants now appeal. They allege the following for their sole assignment
of error:
{¶11} “Reviewing the Appellee’s Motion for Summary Judgment de novo, the
Record is clear and convincing that the trial court erred to the prejudice of Appellants by
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granting Appellee’s Motion for Summary Judgment in favor of Appellee on the
foreclosure Complaint.”
{¶12} First, appellants argue the court erred in granting summary judgment to
BAC because BAC failed to submit an affidavit or any other evidence in support of
summary judgment. Appellants are incorrect. Civ.R. 56(C) provides: “Summary
judgment shall be rendered forthwith if the pleadings, * * * affidavits, * * * and written
stipulations of fact, if any, timely filed in the action, show that there is no genuine issue
as to any material fact * * *.”
{¶13} Here, BAC attached a copy of the subject promissory note, mortgage, and
assignment of the mortgage to its complaint. Further, at no time did appellants file an
objection or motion to strike any of these exhibits. This court has indicated on numerous
occasions that when an evidentiary submission does not fall within the list of acceptable
documents set forth in Civ.R. 56(C), it cannot be reviewed for purposes of summary
judgment unless it is accompanied by a valid affidavit or is properly certified. See e.g.
State ex rel. Boyers v. Stuard, 11th Dist. Trumbull No. 2010-T-0111, 2010-Ohio-6444,
¶5. However, we have further held that the lack of a properly-framed affidavit can be
waived when no timely objection is made. Id. Under such circumstances, a trial court
can consider the disputed document when there is no reason to question its
authenticity. Id. at ¶6.
{¶14} As noted above, in addition to the note, mortgage, and mortgage
assignment, BAC filed an affidavit of its assistant vice president, Betty J. Marion, in
support of its summary-judgment motion. Thus, appellants are incorrect in arguing that
BAC failed to present any evidence in support of its motion for summary judgment.
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{¶15} Next, appellants argue BAC failed to demonstrate the lack of any genuine
issue of material fact concerning whether it had standing when it filed this action. Again,
appellants are incorrect.
{¶16} In Ohio, courts of common pleas have subject-matter jurisdiction over
justiciable matters. Ohio Constitution, Article IV, Section 4(B). “Standing to sue is part of
the common sense understanding of what it takes to make a justiciable case.” Steel Co.
v. Citizens for a Better Environment, 523 U.S. 83, 102 (1998). Standing involves a
determination of whether a party has alleged a personal stake in the outcome of the
controversy to ensure the dispute will be presented in an adversarial context. Mortgage
Elec. Registration Sys. v. Petry, 11th Dist. Portage No. 2008-P-0016, 2008-Ohio-5323,
¶18. A personal stake requires an injury to the plaintiff. Id. The Supreme Court of Ohio
has held that standing is jurisdictional in nature. State ex rel. Dallman v. Franklin Cty.
Court of Common Pleas, 35 Ohio St.2d 176, 179 (1973).
{¶17} The Supreme Court of Ohio has recently held that, in a mortgage
foreclosure action, the mortgage holder must establish an interest in the mortgage or
promissory note in order to have standing to invoke the jurisdiction of the common pleas
court. Fed. Home Loan Mort. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-
5017, ¶28. Further, in Schwartzwald, the Supreme Court held that standing is required
to present a justiciable controversy and is a jurisdictional requirement. Id. at ¶21-22.
The Court held that, because standing is required to invoke the trial court’s jurisdiction,
standing is determined as of the filing of the complaint. Id. at ¶24.
{¶18} This court followed the Supreme Court's holding in Schwartzwald, supra,
in Federal Home Loan Mortgage Corp. v. Rufo, 11th Dist. Ashtabula No. 2012-A-0011,
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2012-Ohio-5930, ¶44, and overruled this court's prior holding in, inter alia, Everhome
Mortg. Co. v. Behrens, 11th Dist. Lake No. 2011-L-128, 2012-Ohio-1454, ¶12, 16, that
standing is not jurisdictional.
{¶19} Whether standing exists is a matter of law that is reviewed de novo.
Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, ¶23.
{¶20} Here, based on our review of the instruments attached to the complaint,
BAC presented evidence that it held the promissory note before it filed the complaint.
Appellant Barber signed the note in favor of BAC when he took out the mortgage loan.
Moreover, although MERS was the initial mortgagee, MERS assigned the mortgage to
BAC before BAC filed the complaint. Thus, when BAC filed this action, it held both the
note and mortgage. Further, appellants failed to present any countervailing evidence.
As a result, there was no genuine issue of material fact concerning whether BAC had
standing to file this action. We therefore hold the trial court did not err in granting
summary judgment to BAC.
{¶21} Appellants’ remaining arguments are equally unavailing. First, appellants
argue that BAC did not have the capacity to obtain an interest in the subject property
because it failed to submit any evidence in support of its designation in the caption of
the complaint as “successor by merger to BAC Home Loans Servicing, L.P., f.k.a.
Countrywide Home Loans Servicing, L.P.” Since BAC held the note and mortgage
before it filed this action and there is no evidence that BAC’s predecessor-in-interest
acquired either instrument by merger, for purposes of standing, it is irrelevant that BAC
is a successor by merger to the above-designated institution. This case is unlike Self
Help Ventures Fund v. Jones, 11th Dist. Ashtabula No. 2012-A-0044, 2013-Ohio-868, in
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which merger documents were necessary to show that the plaintiff-mortgagee’s
predecessor had acquired the mortgage by merger before it assigned the instrument to
the plaintiff.
{¶22} Next, appellants contend that BAC was required to present evidence that
the person who signed the assignment of the mortgage, Swarupa Slee, a vice president
of MERS, was authorized to execute the assignment on behalf of MERS. They suggest
she was a “robo-signer,” meaning she had no personal knowledge of the information in
the assignment to which she attested. However, appellants failed to make this
argument in the trial court and it is thus waived on appeal. Petry, supra, at ¶21.
Moreover, appellants failed to cite any pertinent authority requiring the bank to present
evidence of Slee’s authority. In any event, since appellants did not submit any evidence
that Ms. Slee lacked authority to sign the assignment or that she was a robo-signer,
BAC was not required to submit evidence showing she had such authority or that she
was not a robo-signer.
{¶23} Next, appellants argue that BAC failed to prove the mortgage is in default
because BAC never made presentment (i.e., a demand for payment) of the note to
appellants. However, appellants did not make this argument below and it is therefore
waived on appeal. Id. In any event, the affidavit of Betty Marion, an assistant vice
president of BAC, filed in support of summary judgment, demonstrates that Appellant
Barber was in default. Further, appellants failed to present any evidence that any of the
requirements of default, such as presentment, was not satisfied. Moreover, the
promissory note itself, which Appellant Barber signed, provides, at paragraph 9, “I * * *
waive the rights of Presentment and Notice of Dishonor.”
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{¶24} Next, appellants argue that because the note was held by BAC, the
original lender, and the mortgage was initially given to MERS, “as nominee for” BAC,
the mortgage was unenforceable. Appellants argue that when the note was transferred,
the mortgage did not follow it so that BAC had no interest in the property and could not
institute this action. Once again, appellants failed to raise this argument in the trial court
and it is waived on appeal. In any event, appellants’ argument is based on an incorrect
assumption because BAC never transferred the note. Further, appellants’ argument is
defeated by Bank of New York v. Dobbs, 5th Dist. Knox No. 2009-CA-000002, 2009-
Ohio-4742. In Dobbs, the Fifth District held that the assignment of a mortgage, without
an express transfer of the note, is sufficient to transfer both the mortgage and the note,
if the record indicates that the parties intended to transfer both. Id. at ¶31. This court
cited Dobbs with approval and followed its holding in Rufo, supra, at ¶44. Thus, even if
BAC did not hold the note when it filed this action, the assignment of the mortgage to it
before this action was filed would have sufficed to also transfer the note to it.
{¶25} For the reasons stated in this opinion, it is the judgment and order of this
court that the judgment of the Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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