[Cite as BAC Home Loans Servicing, LP v. Altizer,

.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

BAC HOME LOANS SERVICING, LP JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 12-CA-13 DAVID ALTIZER, ET AL.

Defendants-Appellants OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 10FR10-0651

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 19, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

KIMBERLEE S. ROHR JOHN SHERROD Lerner, Sampson & Rothfuss Mills, Mills, Fiely & Lucas, LLC 120 East Fourth Street, Suite 800 503 South Front Street, Ste. 240 Cincinnati, Ohio 45202 Columbus, Ohio 43215 Knox County, Case No. 12-CA-13 2

Hoffman, P.J.

{¶1} Defendants-appellants David and Brenda Altizer appeal the June 19, 2012

Entry Granting Summary Judgment and Decree in Foreclosure entered by the Knox

County Court of Common Pleas. Plaintiff-appellee is BAC Home Loans Servicing, LP

fka Countrywide Home Loans Servicing, LP (“Countrywide”).

STATEMENT OF THE FACTS AND CASE

{¶2} On November 13, 2006, Appellants executed a promissory note in favor of

Countrywide in the amount of $237,500.00. Appellants secured the note with a

mortgage to Mortgage Electronic Registration Systems (“MERS”) as nominee for

Countrywide. Countrywide subsequently indorsed the note in blank and transferred it to

Appellee, who later merged with Bank of America. The mortgage was also assigned to

Appellee.

{¶3} Appellants defaulted under the terms of the note and mortgage, and

Appellee accelerated the debt. On October 19, 2010, Appellee filed a Complaint in

Foreclosure against Appellants. Copies of the note, mortgage, and assignment of

mortgage were attached as exhibits to the Complaint. Appellants filed a pro se Answer,

in which they admitted to contacting Bank of America for purposes of a loan

modification or federal loan program. Appellants did not assert any defenses or, in any

other way, contest Appellee’s standing or status as the real party in interest.

{¶4} On December 8, 2011, Appellee filed a motion to substitute Bank of

America, successor by merger to Appellee, as party plaintiff. Appellee included

documents detailing the merger of Appellee and Bank of America, which became

effective July 1, 2011. On March 20, 2012, Appellee filed a motion for summary Knox County, Case No. 12-CA-13 3

judgment with the supporting affidavit of Betty J. Marion, Assistant Vice President for

Bank of America. Appellants filed a memorandum contra. Appellee filed a Notice of

Filing of Note which included a copy of the note bearing a blank indorsement from the

original lender. The trial court granted summary judgment in favor of Appellee on June

19, 2012.

{¶5} It is from this judgment entry Appellants appeal, assigning as error:

{¶6} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION

FOR SUMMARY JUDGMENT WHERE IT DID NOT FOLLOW ITS OWN LOCAL RULE

REGARDING EVIDENCE OF ASSIGNMENT OF THE PROMISSORY NOTE AT

ISSUE.”

STANDARD OF REVIEW

{¶7} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987),

,

. As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996),

,

.

{¶8} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)

the moving party is entitled to judgment as a matter of law; and 3) it appears from the

evidence that reasonable minds can come to but one conclusion and viewing such

evidence most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977),

,

. Knox County, Case No. 12-CA-13 4

{¶9} It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett (1987),

,

,

. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996),

,

: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, 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 the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974),

,

. Knox County, Case No. 12-CA-13 5

I

{¶10} In their sole assignment of error, Appellants contend the trial court erred in

granting summary judgment in favor of Appellee as Appellee failed to establish it was

the holder of the note at issue.

{¶11} The Local Rules of the Knox County Court of Common Pleas include

specific requirements for the filing of foreclosure actions. Knox Local R. 16.01 provides:

{¶12} “Rule 17 of the Ohio Rules of Civil Procedure shall be strictly enforced in

all mortgage foreclosure actions. The following information shall be contained in the

complaint:

{¶13} “(A) A copy of the note, along with an affirmative statement in the body of

the complaint that the plaintiff is the holder in due course of the note. If the note does

not reflect that the plaintiff is the holder on its face, a copy of an assignment of the note

shall be filed, demonstrating that the plaintiff is the owner and holder of the note.”

{¶14} Civ.R. 17(A) reads, in pertinent part:

{¶15} “Every action shall be prosecuted in the name of the real party in interest.

An executor, administrator, guardian, bailee, trustee of an express trust, a party with

whom or in whose name a contract has been made for the benefit of another, or a party

authorized by statute may sue in his name as such representative without joining with

him the party for whose benefit the action is brought. * * * No action shall be dismissed

on the ground that it is not prosecuted in the name of the real party in interest until a

reasonable time has been allowed after objection for ratification of commencement of

the action by, or joinder or substitution of, the real party in interest. Such ratification, Knox County, Case No. 12-CA-13 6

joinder, or substitution shall have the same effect as if the action had been commenced

in the name of the real party in interest.”

{¶16} In Wachovia Bank, N.A. v. Cipriano, Fifth Dist. App. No. 09CA007, 2009-

Ohio-5470, ¶ 38, this Court explained: “Pursuant to Civ.R. 17(A), the real party of

interest shall ‘prosecute’ the claim. The rule does not state ‘file’ the claim.” We thus

rejected the defendant's argument in that case the trial court lacked jurisdiction because

Wachovia was not the holder or owner of the note and mortgage at the time of the filing

of the complaint. Id. at ¶ 40. A party must provide evidence of its right to enforce the

note and mortgage prior to the trial court’s entering a judgment. U.S. Bank Natl. Assn.

v. Bayless, Fifth Dist. App. No. 09 CAE 01 004,

. See, also, LaSalle

Bank Natl. Assn. v. Street, Fifth Dist. App.No. 08 CA 60,

.

{¶17} “The purpose behind the real party in interest rule is ‘to enable the

defendant to avail himself of evidence and defenses that the defendant has against the

real party in interest, and to assure him finality of the judgment, and that he will be

protected against another suit brought by the real party at interest on the same matter’.”

Shealy v. Campbell,

,

(1985). (Citations

omitted).

{¶18} “The real-party-in-interest rule concerns only proper party joinder. Civ.R.

17(A) does not address standing; rather, the point of the rule is that “suits by

representative plaintiffs on behalf of the real parties in interest are the exception rather

than the rule and should only be allowed when the real parties in interest are identifiable

and the res judicata scope of the judgment can be effectively determined.” Federal

Home Loan Mortgage Corp. v. Schwartzwald, Slip Opinion No.

, Knox County, Case No. 12-CA-13 7

quoting Lincoln Property Co. v. Roche,

,

,

(2005), citing Consumer Fedn. of Am. v. Upjohn Co.,

(D.C. 1975)

(construing analogous District of Columbia rule).

{¶19} Standing, on the other hand, is a “jurisdictional requirement”. State ex rel.

Dallman v. Franklin Cty. Court of Common Pleas,

,

(1973). Because standing to sue is required to invoke the jurisdiction of the

common pleas court, “standing is to be determined as of the commencement of suit.”

(Citations omitted).

{¶20} The Rules of Civil Procedure do not extend the jurisdiction of the courts of

this state, and a common pleas court cannot substitute a real party in interest for

another party if no party with standing has invoked its jurisdiction in the first instance.

Civ. R. 82. “Accordingly, a litigant cannot pursuant to Civ.R. 17(A) cure the lack of

standing after commencement of the action by obtaining an interest in the subject of the

litigation and substituting itself as the real party in interest.” Schwartzwald, supra.1

{¶21} We find the Complaint filed by Appellee in the instant action alleges

sufficient general facts, coupled with the attached exhibits, to establish Appellee had

standing, at the commencement of the action, to invoke the jurisdiction of the Knox

County Court of Common Pleas. Appellee’s merger with Bank of America did not impact

its standing to initiate the foreclosure or in any way affect its status as the real party in

interest.

{¶22} We find Appellee presented evidence to the trial court which established it

was the holder of the note and mortgage. Accordingly, we find Appellee complied with

1 We find Schwartzwald effectively reverses this Court’s previous holdings to the contrary in Cipriano, Bayless and Street. Knox County, Case No. 12-CA-13 8

Civ. R. 17.2 Further, Appellee supported its motion for summary judgment with affidavits

and documents which establish it is the real party in interest. Appellants failed to

present any evidence to the contrary or which showed an issue of material fact was in

dispute.

{¶23} Based upon the foregoing, we find the trial court did not err in granting

summary judgment in favor of Appellee.

{¶24} Appellants’ sole assignment of error is overruled.

{¶25} The judgment of the Knox County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ John W. Wise _____________________ HON. JOHN W. WISE

s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS

2 To the extent the trial court failed to adhere to its Loc.R. 16.01, we find no abuse of discretion. Knox County, Case No. 12-CA-13 9

IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

BAC HOME LOANS SERVICING, LP : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DAVID ALTIZER, ET AL. : : Defendants-Appellants : Case No. 12-CA-13

For the reasons stated in our accompanying Opinion, the judgment of the Knox

County Court of Common Pleas is affirmed. Costs to Appellants.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ John W. Wise _____________________ HON. JOHN W. WISE

s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS