[Cite as Bank of New York Mellon v. Morgan,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

THE BANK OF NEW YORK MELLON :

Plaintiff-Appellee : C.A. CASE NO. 25664

v. : T.C. NO. 11CV5243 11CV6630 DAVID M. MORGAN, et al. : (Civil appeal from Defendants-Appellants : Common Pleas Court)

:

..........

OPINION

Rendered on the 4th day of October , 2013.

..........

JOHN R. WIRTHLIN, Atty. Reg. No. 0031526 and MICHAEL B. HURLEY, Atty. Reg. No. 0087626, 1700 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202 Attorneys for Plaintiff-Appellee

JONATHAN F. HUNG, Atty. Reg. No. 0082434 and JARED A. WAGNER, Atty. Reg. No. 0076674, 800 Performance Place, 109 N. Main Street, Dayton, Ohio 45402 Attorneys for Defendants-Appellants

..........

FROELICH, J.

{¶ 1} David M. Morgan and Karen R. Kaylor appeal from a judgment of the

Montgomery County Court of Common Pleas in favor of Bank of New York Mellon in its

foreclosure action and in Morgan and Kaylor’s quiet title action. For the following reasons, the trial court’s judgment will be affirmed.

I. Factual and Procedural History

{¶ 2} In 2006, Morgan and Kaylor borrowed $511,200 from Kemper Mortgage,

Inc., to purchase the property located at 9321 Ash Hollow Lane. Morgan and Kaylor signed

an adjustable rate interest-only note for that amount, and the note was secured by a mortgage

on the property.

{¶ 3} In July 2011, Bank of New York Mellon (“BNYM”) filed a complaint for

foreclosure, alleging that the note was in default, the entire balance was properly declared

due, and it was entitled to judgment and a decree of foreclosure. Bank of New York Mellon

v. Morgan, Montgomery C.P. No. 2011 CV 5243. BNYM attached a copy of the note and

mortgage to its complaint. The note contained an endorsement from Kemper Mortgage to

Decision One Mortgage Company and a blank endorsement by Decision One Mortgage.

BNYM also attached assignments of mortgage from Kemper to Mortgage Electronic

Registration System, Inc. (MERS), and from MERS to BNYM.

{¶ 4} Morgan and Kaylor were timely served with the complaint. Representing

themselves in the action, the homeowners filed an answer denying the allegations. Morgan

and Kaylor also included a counterclaim against BNYM, which raised violations of various

consumer and real estate statutes and asked the court to suspend the foreclosure and quiet

title in their favor. On September 15, 2011, Morgan and Kaylor filed a separate quiet title

action against Bank of America, N.A., MERS, and BNYM. Morgan v. Bank America, N.A.,

Montgomery C.P. No. 2011 CV 6630. Upon BNYM’s motion, the trial court consolidated

the two cases.1

1 This appeal concerns only BNYM, Morgan, and Kaylor. We will not 3

{¶ 5} On March 23, 2012, Morgan and Kaylor filed a motion to compel BNYM to

respond to their interrogatories and request for production of documents. On April 6, 2012,

BNYM served its responses on the homeowners and it informed the trial court that it had

responded. BNYM asked the trial court to deny the motion to compel as moot, which the

court did. In June 2012, BNYM provided another notice to the court that it had responded

to Morgan and Kaylor’s requests for admissions.

{¶ 6} On July 23, 2012, BNYM moved for summary judgment on Morgan and

Kaylor’s quiet title claim. The bank argued that the homeowners could not establish a

prima facie case for a quiet title action under R.C. 5303.01 because the homeowners

admitted that they borrowed money from Kemper and a valid mortgage is not a “cloud” on

the title. On the same date, BNYM moved for summary judgment on all of its claims in its

foreclosure action.

{¶ 7} Within days of the filing of BNYM’s motions for summary judgment,

Morgan and Kaylor’s newly-retained counsel filed a notice of appearance, and the

homeowners moved for leave to amend their answer. Morgan and Kaylor indicated that

they wished to amend their answer to “more specifically state their affirmative defenses and

plead more consistently with their discovery responses,” to restate and clarify their claims

regarding BNYM’s standing to enforce the note and mortgage, and to include a third-party

complaint against Kemper Mortgage.

{¶ 8} On August 1, 2013, Morgan and Kaylor filed a motion to delay or deny

summary judgment on BNYM’s claims against them, pursuant Civ.R. 56(F). They argued

discuss the other parties further. 4

that they needed more time to resolve outstanding discovery issues with BNYM and to

discover facts to show that BNYM did not have possession of the note or the right to enforce

the mortgage. They supported their motion with affidavits from Morgan and their attorney.

{¶ 9} While noting that their motions to amend their pleading and to delay ruling

on summary judgment were still pending, Morgan and Kaylor responded to BNYM’s

motions for summary judgment. Morgan and Kaylor argued that the affidavit provided by

BNYM in support of its summary judgment motion in the foreclosure action was

inadmissible, and they asserted that genuine issues of material fact existed as to whether

BNYM was the holder of the note and was properly assigned the mortgage. The trial court

subsequently denied the homeowners’ motion for leave to amend their pleading.

{¶ 10} On September 19, 2012, Morgan and Kaylor filed a second motion to

compel discovery from BNYM. They argued that many of BNYM’s discovery responses

were incomplete and the bank had not been cooperative in resolving the dispute about their

answers. All of the disputed interrogatories and requests for production of documents

concerned BNYM’s evidence of their ownership of the note and mortgage. Morgan and

Kaylor also complained that BNYM had not contacted them to arrange a time for them to

inspect the original note.

{¶ 11} On October 9, 2012, the trial court ordered BNYM to answer whether a

particular individual was an employee of MERS, but otherwise overruled the motion to

compel. With respect to the original note, the court noted that BNYM had responded,

“Plaintiff will make the original note available for inspection and copying at a time and place

that is convenient to Defendants David Morgan and Karen Kaylor. Once counsel for 5

Plaintiff has received the requested note, counsel will notify Defendants and arrange a time

and place for inspection and copying.” The trial court advised counsel to arrange a time for

this to occur. BNYM filed its response to Morgan and Kaylor’s outstanding request for

admissions on October 15, 2012.

{¶ 12} On October 24, 2012, the trial court overruled Morgan and Kaylor’s Civ.R.

56(F) motion to delay the ruling on summary judgment and granted BNYM’s motion for

summary judgment on Morgan and Kaylor’s claims against it. In a separate ruling, the trial

court granted summary judgment to BNYM on its foreclosure claims. The trial court

subsequently filed a judgment entry which both granted judgment and a decree of

foreclosure to BNYM in its foreclosure action and granted judgment to BNYM on Morgan

and Kaylor’s quiet title action.

{¶ 13} Morgan and Kaylor appeal from the trial court’s judgment. They raise three

assignments of error, which we will address in reverse order.

II. Denial of Motion to Amend Pleadings

{¶ 14} Morgan and Kaylor’s third assignment of error states, “The trial court erred

when it overruled Appellants’ motion for leave to amend their pleadings.”

{¶ 15} Civ.R. 15(A) provides that “[l]eave of court [to amend a pleading] shall be

freely given when justice so requires.” “While [Civ.R. 15(A) ] allows for liberal

amendment, motions to amend pleadings pursuant to Civ.R. 15(A) should be refused if there

is a showing of bad faith, undue delay, or undue prejudice to the opposing party.” Turner v.

Cent. Local School Dist.,

,

(1999). A trial court’s

decision on whether to allow the amendment of a pleading is reviewed for an abuse of 6

discretion. Baltes Commercial Realty v. Harrison, 2d Dist. Montgomery No. 23177,

, ¶ 43, citing State ex rel. Askew v. Goldhart,

,

(1996). An abuse of discretion implies an attitude on the part of the trial court

that is arbitrary, capricious, or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶ 16} As stated above, after obtaining counsel, Morgan and Kaylor filed a motion

to amend their answer for the purpose of clarifying their affirmative defenses and allegations

so that they were consistent with their discovery answers. They also sought to add a

third-party complaint against Kemper to raise claims of breach of fiduciary duty and slander

of title. The trial court denied Morgan and Kaylor’s motion without explanation.

{¶ 17} To the extent that Morgan and Kaylor sought simply to clarify their

allegations and defenses, the trial court did not abuse its discretion in denying the motion to

amend. Although the amended answer and counterclaim may have been more artfully

written than those that were filed pro se, the claims asserted in the amended answer and

counterclaim were already before the court. While the trial court could have reasonably

permitted the answer and counterclaim to be amended, it was not reversible error for the trial

court to deny the motion.

{¶ 18} Morgan and Kaylor sought to add Kemper Mortgage, the original mortgagee,

to the litigation through a third-party complaint. The homeowners’ proposed claim for

breach of fiduciary duty alleged that Kemper breached its duty to them by erroneously

determining that the note was within their financial means. The homeowners also alleged

that Kemper had a duty to record a corporate assignment of mortgage to Decision One. 7

They asserted that Kemper had executed and recorded a false assignment of mortgage to

MERS. Morgan and Kaylor’s slander of title claim reiterated that Kemper created a cloud

on the title by purportedly assigning the mortgage to MERS after previously assigning the

mortgage to Decision One.

{¶ 19} Under Civ.R. 14(A), “a defending party, as a third-party plaintiff, may cause

a summons and complaint to be served upon a person not a party to the action who is or may

be liable to him for all or part of the plaintiff’s claim against him.” The third-party

complaint may be filed without leave if it is filed within 14 days of serving the original

answer. Thereafter, leave of court is required.

{¶ 20} BNYM brought suit against Morgan and Kaylor due to the homeowners’

alleged default on the note and mortgage in connection with the Ash Hollow property.

Morgan and Kaylor’s claims against Kemper, although related to their purchase of the Ash

Hollow property, do not assert that Kemper may be liable to them for all or part of BNYM’s

claims against them. Morgan and Kaylor seek a monetary judgment against Kemper for

its own actions related to the lending of money to the homeowners and the recording of the

assignment of mortgage to MERS. Morgan and Kaylor’s claims against Kemper do not fall

within the scope of Civ.R. 14(A). See BAC Home Loans Servicing, LP v. Blankenship, 6th

Dist. Lucas No. L-11-1199,

. Accordingly, the trial court did not err in

denying the homeowners’ motion to amend their pleading to include a third-party complaint.

{¶ 21} The third assignment of error is overruled.

III. Denial of Civ.R. 56(F) Motion

{¶ 22} Morgan and Kaylor’s second assignment of error states, “The trial court 8

erred when it overruled Appellants’ motion to delay or deny summary judgment.”

{¶ 23} In their second assignment of error, Morgan and Kaylor claim that the trial

court should have deferred ruling on BNYM’s motion for summary judgment and allowed

them additional time to conduct discovery under Civ.R. 56(F).

{¶ 24} Civ.R. 56(F) provides:

Should it appear from the affidavits of a party opposing the motion for

summary judgment that the party cannot for sufficient reasons stated present

by affidavit facts essential to justify the party’s opposition, the court may

refuse the application for judgment or may order a continuance to permit

affidavits to be obtained or discovery to be had or may make such other order

as is just.

“The trial court’s determination of a Civ.R. 56(F) motion is a matter within its sound

discretion. Accordingly, the trial court’s determination will not be reversed absent an abuse

of that discretion.” (Citation omitted.) Scaccia v. Dayton Newspapers, Inc.,

,

,

(2d Dist.).

{¶ 25} We discussed the requirements of Civ.R. 56(F) in Doriott v. MVHE, Inc.,

2d Dist. Montgomery No. 20040,

, as follows:

Pursuant to Civ.R. 7([B]), the grounds for a Civ.R. 56(F) motion for a

continuance must be stated with particularity. In addition, Civ.R. 56(F)

requires the motion to be supported by an affidavit containing “sufficient

reasons why (the nonmoving party) cannot present by affidavit facts sufficient

to justify its opposition” to the summary judgment motion. “Mere 9

allegations requesting a continuance or deferral of action for the purpose of

discovery are not sufficient reasons why a party cannot present affidavits in

opposition to the motion for summary judgment.” “There must be a factual

basis stated and reasons given within an affidavit why a party cannot present

facts essential to its opposition to the motion.”

A party who seeks a continuance for further discovery is not required

to specify what facts he hopes to discover, especially where the facts are in

the control of the party moving for summary judgment. However, the court

must be convinced that there is a likelihood of discovering some such facts.

Further, a claim that the party has not completed discovery is more likely to

be rejected by the court where the party has not shown some diligence in

attempting discovery.

; see also Bank of Am. v. McGlothin, 2d Dist. Clark No. 2012 CA 96,

.

{¶ 26} Morgan and Kaylor originally served BNYM with interrogatories and

requests for production of documents in January 2012. After Morgan and Kaylor filed a

motion to compel discovery, BNYM provided answers on April 6, 2012.

{¶ 27} In their Civ.R. 56(F) motion, filed August 1, 2012, Morgan and Kaylor

argued that there were outstanding discovery issues that had not yet been resolved. They

asserted that they could not reasonably schedule or provide notice of depositions until

BNYM provided additional information, such as the residential address of Veronica Vela,

who had submitted an affidavit in support of BNYM’s motion for summary judgment. 10

Morgan and Kaylor stated that they sought facts relevant to the standing issue, such as

whether BNYM has actual possession of the note and whether BNYM received rights to

enforce the note through the assignments of mortgage from Kemper to MERS and from

MERS to BYNM. Morgan and Kaylor’s counsel provided an affidavit saying that he was

retained as counsel on July 18, 2012, and that he sent a letter on July 25, which outlined

certain deficiencies in BNYM’s discovery responses. The attorney indicated that he had not

yet received a reply from BNYM.

{¶ 28} Approximately six weeks after filing their Civ.R. 56(F) motion, Morgan and

Kaylor filed a second motion to compel discovery. On October 9, 2012, the trial court

ordered BNYM to answer whether Mercedes Judilla was an employee of MERS, but

otherwise overruled the motion. The court noted that BNYM had provided contact

information for Ms. Vela in its April 2012 responses to the interrogatories.

{¶ 29} Upon review of the record, the trial court did not abuse its discretion in

overruling Morgan and Kaylor’s Civ.R. 56(F) motion. In its April 2012 response to the

homeowners’ interrogatories, BNYM identified Vela as the individual who had knowledge

of facts that would establish BNYM’s standing in this case. Morgan and Kaylor had contact

information for Vela (albeit not her residential address) as of April 2012, yet they did not

attempt to schedule a deposition of her. There is nothing to suggest that the contact

information the BYNM provided for Vela was insufficient.

{¶ 30} In addition, Morgan and Kaylor sought evidence that BNYM had

possession of the original note. They wanted to know who delivered the note to BNYM and

to inspect the note. BNYM’s responses referred the homeowners to Vela, who could have 11

been deposed. BNYM indicated that they would make the note available, and there is no

suggestion that the original note would provide different information that the copies

provided to the homeowners.

{¶ 31} The second assignment of error is overruled.

IV. Motion for Summary Judgment

{¶ 32} Morgan and Kaylor’s first assignment of error states, “The trial court erred

when it granted Appellee’s motion for summary judgment.”

{¶ 33} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter

of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the

nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club,

Inc.,

,

(1998). The moving party carries the

initial burden of affirmatively demonstrating that no genuine issue of material fact remains

to be litigated. Mitseff v. Wheeler,

,

(1988). To

this end, the movant must be able to point to evidentiary materials of the type listed in

Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt,

,

(1996). Those materials include “the

pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts

of evidence, and written stipulations of fact, if any, filed in the action.”

; Civ.R.

56(C).

{¶ 34} Once the moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the party's pleadings.

; Civ.R. 12

56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or

as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a

genuine issue of material fact for trial.

Throughout, the evidence must be construed in

favor of the nonmoving party.

{¶ 35} At the outset, it is undisputed that Morgan and Kaylor borrowed $511,200

from Kemper Mortgage to purchase the Ash Hollow property and signed a mortgage

securing the loan. The homeowners also do not dispute that they have defaulted on their

payments; they admitted in BNYM’s request for admissions that their last payment was

made on January 20, 2011, and that they are obligated to repay the money that they

borrowed, plus interest. Morgan and Kaylor also acknowledged that they received a notice

of default.

{¶ 36} In support of their motions for summary judgment, BNYM submitted an

affidavit by Veronica Vela of Bank of America, N.A. (“BANA”), which services the

homeowners’ loan for BNYM. Vela stated that BANA maintains the loan records for

BNYM, that she had personal knowledge of “BANA’s procedures for creating these

records,” that, as part of her job, she is familiar with the types of records maintained by

BANA in connection with Morgan and Kaylor’s loan, and that the information contained in

her affidavit was taken from BANA’s business records. Vela stated that she “personally

reviewed the attached records, and I make this affidavit from a review of those business

records and from my personal knowledge of how said records are created and maintained.”

{¶ 37} According to Vela’s affidavit, BNYM “holds the Note and is the person

entitled to enforce a certain promissory note,” which was secured by a mortgage. Copies of 13

the note and the mortgage were attached to Vela’s affidavit, and she stated that the attached

note and mortgage were “true and accurate” copies of the original note and mortgage. The

note identified the lender as Kemper Mortgage, and it included an endorsement from

Kemper Mortgage to Decision One. On the same page, there was a blank endorsement by

Decision One. The mortgage identified Kemper as the mortgagee/lender.

{¶ 38} Also attached to Vela’s affidavit were “true and accurate” copies of Morgan

and Kaylor’s’ payment history and a notice of default. The payment history showed that

Morgan and Kaylor’s last payment was made on January 28, 2011, and that the payment was

applied to the amount due in November 2010. Vela stated that Morgan and Kaylor

defaulted on the terms of the note when they failed to make the monthly payment due on

December 1, 2010. BANA notified them of the default, the default was never cured, the

loan was never reinstated or paid off, and the note and mortgage remain in default. The

entire balance has been accelerated and is due.

{¶ 39} BNYM also submitted an affidavit by Edward Cahill, legal assistant to Kelly

Spengler, who was an attorney for BNYM. Cahill stated that he requested certified copies

from the Montgomery County Recorder’s Office of the mortgage in favor of Kemper, the

assignment of mortgage from Kemper to MERS, and the assignment of mortgage from

MERS to BNYM. Cahill stated that the Montgomery County Recorder’s Office returned

the three certified copies attached to his affidavit.

{¶ 40} In opposing BNYM’s summary judgment motion, Morgan and Kaylor

asserted that genuine issues of material fact existed regarding whether BNYM had actual

possession of and was entitled to enforce the note. The homeowners claimed that BNYM 14

refused to provide an opportunity to inspect the original note, and Vela’s affidavit was

insufficient to establish that BNYM possessed it. Morgan and Kemper further asserted that

there was substantial evidence that Kemper assigned the mortgage to Decision One, rather

than MERS, and that the assignment of the mortgage to BNYM, even if it did occur, was not

sufficient to allow BNYM to enforce the note.

{¶ 41} According to Morgan’s second affidavit, on March 15, 2006, he attended the

closing for the loan on the Ash Hollow property. At the closing, Kemper provided

documents giving notice of its assignment of its rights and interests in the promissory note

and mortgage executed by Morgan and Kaylor. Morgan attached unsigned copies of a

“Notice of Assignment, Sale or Transfer of Servicing Rights” from Kemper to Decision

One, a “Corporate Assignment of Mortgage” from Kemper to Decision One, and a “Request

for Change to Insurance Policy” so that Decision One, rather than Kemper, was listed as

mortgagee. Morgan further stated in his affidavit that BNYM had not produced the original

promissory note or mortgage to him or Kaylor.

{¶ 42} The trial court granted summary judgment to BNYM for both the quiet title

action and its foreclosure action. After reviewing the evidence submitted by the parties, the

court concluded in its quiet title decision:

Based on the evidence before the Court, it appears that Morgan and Kaylor

were fully aware of what they were doing and intended to execute the

mortgage and note at issue. There is no dispute of fact that Defendants fully

intended to execute a mortgage in favor of Kemper Mortgage, Inc. to secure

the promissory note at issue. The documents attached to Defendant 15

Morgan’s Second Affidavit do not call into question the validity of the

assignment of the mortgage to MERS or BNY. The note is endorsed in

blank and is bearer paper. BNY has filed evidence showing that it is the

holder of the note. Defendants have failed to show that a dispute of fact

exists as to their claim(s) for quiet title. The Court finds that BNY is entitled

to summary judgment on Morgan and Kaylor’s claims for quiet title against

BNY.

{¶ 43} In granting summary judgment to BNYM on its own claims, the trial court

rejected Morgan and Kaylor’s contention that Vela’s affidavit was hearsay and did not

contain the proper basis of knowledge to support a finding that she had personal knowledge

of the matters to which she testified. It further stated that BNYM was not required to

produce the original documents, as the documents produced by BNYM were sworn or

certified copies and the assignments of mortgage were exempt from the hearsay rule. The

court found that no genuine issues of material fact existed and that the evidence indicated

that BNYM was the holder of the note and assignee of the mortgage.

{¶ 44} On appeal, Morgan and Kaylor raise the same arguments that they presented

to the trial court. Upon review, we find no fault with the trial court’s grant of summary

judgment.

{¶ 45} First, Vela’s affidavit sufficiently alleged that she had knowledge of the facts

included in her affidavit. As we recently stated in Fifth Third Mtge. Co. v. Campbell, 2d

Dist. Montgomery No. 25458,

:

Civ.R. 56(E) provides that a supporting affidavit must “be made on personal 16

knowledge,” must “set forth such facts as would be admissible in evidence,”

and must “show affirmatively that the affiant is competent to testify to the

matters stated in the affidavit.” “A flat statement by the affiant that he had

personal knowledge is adequate to satisfy Civ.R. 56(E).” (Citation omitted.)

Bank One, N.A. v. Swartz, 9th Dist. Lorain No. 03CA008308,

(saying also that “a specific averment that an affidavit

pertaining to business is made upon personal knowledge of the affiant

satisfies the Civ.R. 56(E) requirement that affidavits both in support or in

opposition to motions for summary judgment show that the affiant is

competent to testify to the matters stated”).

Campbell at ¶ 6. Vela’s affidavit stated that she had personal knowledge of how BANA’s

records are created and maintained, that BANA maintained the loan records for BNYM, and

that the facts contained in her affidavit were based on that knowledge and her personal

review of the records attached to the affidavit. The trial court did not err in considering

Vela’s affidavit.

{¶ 46} In addition, the trial court did not err in considering the documents attached

to Vela’s and Cahill’s affidavits. The note, mortgage, and assignments of mortgage were

attached to the affidavits, they were authenticated and verified, and they fall under the

business-records hearsay exception in Evid.R. 803(6). See Campbell at ¶ 7-9; SFJV v.

Ream,

,

,

(2d Dist.).

{¶ 47} Upon review of the parties’ evidence, we find no genuine issue of material

fact as to whether BNYM was the holder of the note. The note was executed by Morgan 17

and Kaylor in favor of Kemper. The note contains an endorsement from Kemper to

Decision One, and Decision One endorsed the note in blank, which caused the note to be

bearer paper. R.C. 1303.25(B). Vela’s affidavit established that BNYM was the holder of

the note with the right to enforce the note, and she attached a copy of the note to her

affidavit. Morgan and Kaylor have provided no evidence to contradict Vela’s averment.

Accordingly, no genuine issue of material fact exists that BNYM was the holder of the note.

{¶ 48} Morgan and Kaylor argue that genuine issues of material fact exist as to

BNYM’s actual possession of the note because BNYM refused to provide them an

opportunity to inspect the original copy of the note. They rely on Bank of New York Mellon

Trust Co Natl. v. Mihalca, 9th Dist. Summit No. 25747,

, for the proposition

that a trial court errs in granting summary judgment to a plaintiff-bank when the bank fails to

produce the original copy of a note upon timely request by the defendant-payors for

inspection.

{¶ 49} In Mihalca, the Ninth District specifically stated that “[n]othing in this

opinion should be read to suggest a requirement that foreclosure complaints may only be

filed with original notes and mortgage documents.” Id. at ¶ 19. Rather, the appellate court

concluded that “the affidavit [before the trial court] was insufficient to overcome the doubt

that the Bank lacked current possession of the note for purposes of summary judgment.” Id.

at ¶ 18. The differences in the affidavit and the distinct discovery and pre-trial rulings

distinguish Mihalca from this case.

{¶ 50} Moreover, we have previously held that a foreclosing bank was not required

to present the original documents to the trial court and that a trial court could rely on copies 18

of a note and mortgage in ruling on a motion for summary judgment in a foreclosure case.

See U.S. Bank Natl. Assn. v. Higgins, 2d Dist. Montgomery No. 24963,

; CitiMortgage, Inc. v. Draper, 2d Dist. Clark No. 2012 CA 78,

(“Berry was not required to attach the original note and mortgage to her affidavit, and the

trial court did not err in granting summary judgment in CitiMortgage’s favor without those

originals.”). Where a plaintiff-bank has attached copies of the note and mortgage to an

affidavit attesting that the copies are true and accurate copies of the note and mortgage, we

have found that such evidence is sufficient meet the bank’s summary judgment burden of

establishing standing. See Draper at ¶ 18; see also, e.g., BAC Home Loans Servicing, L.P.

v. Untisz, 11th Dist. Geauga No. 2012-G-3072,

; U.S. Bank, N.A. v.

Adams, 6th Dist. Erie No. E-11-070,

, ¶ 16-18 (“U.S. Bank’s possession of

the note was demonstrated by the attachment of a copy of the note to the complaint and the

affidavit, coupled with Rowles’ statements concerning U.S. Bank’s possession of the note

and mortgage in her affidavit.”).

{¶ 51} Morgan and Kaylor further claim that BNYM did not establish that it had

standing to bring the foreclosure action, because they produced evidence that Kemper

assigned the mortgage to Decision One prior to Kemper’s purported assignment to MERS.

Morgan and Kaylor did not present any evidence of any signed assignment of mortgage from

Kemper to Decision One. And even assuming, arguendo, that there were irregularities in

assignment of the mortgage, Ohio courts have recognized that in such cases the mortgage

automatically follows the note it secures. See, e.g., Bank of New York Mellon v.

Loudermilk, 5th Dist. Fairfield No. 2012-CA-30,

(citing cases); 19

Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502,

(“Even if the assignment of mortgage from Argent to Deutsche Bank was invalid,

Deutsche Bank would still be entitled to enforce the mortgage because under Ohio law, the

mortgage ‘follows the note’ it secures. * * * The 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.”); U.S.

Bank Natl. Assn. v. Gray, 10th Dist. Franklin No. 12AP-953,

, ¶ 31-34

(recognizing that the transfer of a note automatically results in equitable assignment of a

mortgage securing the note). BNYM established that it held the note secured by the

mortgage at issue. Thus, again, even assuming certain irregularities, BNYM was not

required to have the mortgage formally assigned to it.

{¶ 52} Accordingly, the trial court did not err in granting summary judgment to

BNYM on its claims against Morgan and Kaylor and on the homeowners’ claims against it.

The first assignment of error is overruled.

V. Conclusion

{¶ 53} The trial court’s judgment will be affirmed.

..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

John R. Wirthlin Michael B. Hurley Jonathan F. Hung Jared A. Wagner 20

Hon. Timothy N. O’Connell