"Nr.:.r,x,-r ».^

.+^m

IN THE SUPREME COURT OF OHIO

Wells Fargo Bank, NA On Appeal from the Licking3476 Stateview Boulevard County Court of Appeals,Fort Mill, South Carolina 29715 Fifth Appellate District

Appellee,vs_

Mary K. Roehrenbeck264 Isaac Tharp StreetPataskala, OH 43062

Appellant.

Court of AppealsCase No: 2013 CA 0029

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT MARY K. ROEHRENBECK

Mary K. Roehrenbeck264 Isaac Tharp StreetPataskala, OH 43062(614) 370-0135kroeh@msn.comPro Se

Scott A. KingTerrance A. MebaneThompson Hine LLP41 South High Street, Suite 1700Columbus, OH 43215COUNSEL FOR APPELLEE

Matthew J. RichardsonHolly N. WolfManley Deas Kochalski LLCPO Box 165028Columbus, OH 43216CO-COUNSEL FOR APPELLEE

^•ss^.^'^,^^ ^.^.;%^

fj:h: 27 2014'^if'x^^ o ^

CLERK OF COURT

S U! <''€ iE M E 4^,3':i%..fF.`^10 F 0 H I

.::^:

Table of Contents:

EXPLANATION OF WHY THIS CASE IS A CASE OF .................... .. 3

STATEMENT OF THE CASE AND FACTS .. ...................................... 5

ARGUMENT IN SUPPORT OF PRC}POSITIONS OF LAW ........................ . 7

Proposition of Law No. 1: Fraud ................................ ..................>.,.... 7

Proposition of Law No. 2: ORC 1303.03(A) does not define the promissory note of thiscase. The definition for promissory note can be found in ORC 1309.20(65) .......................12

Proposition of Law No. 3: Affidavits need to be proven when challenged .........................14

Proposition of Law No. 4: Summary Judgment should not be granted when there aregenuine issues to the facts of the case.................................... . ,.. ,,.15

2

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST

This cause presents critical issues for the future of all homeowners in Ohio: (1)

whether notes, secured by a mortgage, are security instruments, under the guidelines of

ORC 1309. or are they negotiable instruments under the guidelines of ORC 1303.; (2)

whether lending institutions are required to keep, and provide, accurate records of when

they receive assignments and transfers of the Notes, secured by a mortgage; (3)

whether lending institutions are allowed to solicit monies from individuals prior to the

assignment of, or otherwise securing, the Note; (4) whether affidavits are valid if they

only contain the year of the transfer date of a Note, rather than the month, day, and

year.

In this case, the court of appeals ruled that a promissory note, secured with a

mortgage, falls under the guidelines of ORC 1303.. The court of appeals also ruled that

since ORC 1303. required no dated record keeping, Wells Fargo did not need to provide

one, even when specifically challenged.

The decision of the court of appeals is based off of the case, Federal Land Bank

of Louisville v. Taggart, 31 Ohio St.3d 8, 10, 508 N.E.2d 152 (1987).

The implications of the decision of the court of appeals affect every home owner,

with a mortgage, in Ohio and every lending institution holding a promissory note for a

homeowner in Ohio. ORC 1309. provides the creditor and debtor protections that are

not offered in ORC 1303. A security agreement is effective according to its terms

between the parties, against purchasers of the collateral, and against creditors (ORC

1309.201),

The definition for both Mortgage and Promissory Note resides in ORC 1309.

(ORC 1309.102(55) and ORC1309:102(75) respectively).

3

If a promissory note, secured by a mortgage, is not part of a security agreement,

and does not require proper record keeping, then anyone who holds the promissory

note can solicit payment from homeowners. After the homeowners believes that their

home has been paid off, another party can come in and claim that the homeowner paid

an incorrect party and then the homeowner must pay the new party. Without any record

keeping requirements and/or protections built in to ORC 1309., there is nothing

protecting homeowners from this.

Regardless of what ORC code a promissory note falls under, if there is a

question as to when the lending institution came i nto ownership of the Note, to

determine proper payment and payoff amounts to the current holder of the Note, the

homeowner will be at the mercy of the current holder of the note to determine the terms.

tNth the ruling of this case being appealed, all homeowners with promissory notes are

at risk in the state of Ohio. Based on this case, the lending institution does not have to

provide any proof of transfer of the note, even when requested, and whatever the

lending institution states as fact, is all that is needed to show the burden of proof.

If Wells Fargo E3ank, N.A. v. F?oehrenbeck, 2013-Ohio-5498 is not reversed, it will

be cited as proof that record keeping is not needed for promissory notes, secured by a

mortgage in Ohio.

^,

STATEMENT OF THE CASE AND FACTS

The case arises from the attempt of Appellee ("Wells Fargo"), to foreclose on

Appellant, Mary K. Roehrenbeck ("Roehrenbeck"). During the foreclosure action,

Roehrenbeck recognized that Wells Fargo did not have standing to sue and that the

Wells Fargo never provided critical transfer information concerning the Note.

Roehrenbeck answered the foreclosure claim and then countered sued stating that

Wells Fargo collected monies from Roehrenbeck prior to owning the promissory note.

Wells Fargo answered the claim, alleging that Roehrenbeck was confused over the

assignment of mortgage, and that Wells Fargo does not need to provide a date of

transfer of the Note.

Wells Fargo provided an affidavit from Angela Frye stating that after Angela

personally reviewed the business records provided by someone else who had personal

knowledge of Wells Fargo's business records pertaining to Mary K. Roehrenbeck, and

which were provided by a person with knowledge and under a duty to enter accurate

information, she found that Wells Fargo received the promissory note during the year of

2006.

Wells Fargo withdrew the foreclosure claim.

Wells Fargo requested and was granted summary judgment in their favor on the

counterclaim, using the argument that the promissory note was a negotiable instrument

and therefore does not require dates of transfer.

Roehrenbeck appealed to the Licking County Court of Appeals with four

assignments of errors: (1) The trial court did not allow additional time for appellant to

create a proper memorandum contra to appellee's request for summary judgment. (2)

^:,

The trial court should not have granted summary judgment to appellee because the

promissory note does require dates of assignments and transfers. (3) The trial court

should not have granted summary judgment to the appellee because the affidavit

provided was invalid. And (4) The trial court should not have provided summary

judgment to the appellee because reasonable minds cannot come to the conclusion that

the Appellee was correct.

The court of appeals affirmed the judgment of the court of common pleas by

including the 3`a and 4th assignments of errors in with the second assignment of error,

ruling that a promissory note is a negotiable instrument and does not require dates of

transfers and assignments of promissory notes secured with a mortgage.

The court of appeals erred in grouping the assignment of errors together

because they were not related.

In support of its position on these issues, the appellant presents the following

argument:

6

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1: Fraud

The appeals court incorrectly stated in paragraph 16 of the Opinion: "The

Counterclaim's legal premise is that Wells Fargo began collecting payments prior to

MERS executing the notice of Assignment of Mortgage, and that this was fraudulent. "

The counterclaim was clear, as was the Appellant Brief, and the Response Brief

submitted to the appeals court. Roehrenbeck is not confused by the MERS assignment

of Mortgage presented by Wells Fargo. Roehrenbeck further states that the assignment

of Mortgage has nothing to do with the assignment and transfer of the Note. Correctly

stated, The Counterclaim's legal premise is that Wells Fargo began collecting payments

before Wells Fargo had legal right to enforce the Note.

The United States Supreme Court established the basic rule early in the 1873

case of Carpenter v. Longan, 83 US 271 - Supreme Court 1873, "The note and

mortgage are inseparable; the former as essential, the latter as an incident. An

assignment of the note carries the mortgage with it, while an assignment of the latter

alone is a nullity..." The only date associated with a transfer of any kind, was the

transfer of the mortgage. Wells Fargo has refused to provide the date that the Note was

transferred. If the assignment of the mortgage, alone, is a nullity, then it is reasonable

to request the date of the assignment and transfer of the Note. Holding the Note (or a

copy thereof) at the time of foreclosure does not guarantee that Wells Fargo had the

Note any time prior to submitting it to the Court.

Wells Fargo's argument is that since they had a non-certified photocopy of the

note when they filed for foreclosure and the note had "pay to the order of Wells Fargo"

^:;

stamped on it in two different places, along with a blank stamp, they had standing to

sue. But, by the documentation presented to the Court, by Wells Fargo, it appeared as

if Wells Fargo received the assignment of the Note with the assignment of the

Mortgage. Wells Fargo answered the complaint stating that the mortgage follows the

Note, so it is permissible that the assignment came so late. Roehrenbeck's response

was basically, please show the Court the date of the assignment and transfer of the

Note. Wells Fargo's response was basically, Judge, the Defendant is confused, poor

thing, but to appease her, here is an affidavit based on hearsay and a request for

summary judgment (sarcasm added for emphasis). And the trial judge granted summary

judgment in favor of Wells Fargo.

Roehrenbeck appealed the decision and the Appellant brief clearly stated in the

first sentence of the third assignment of error: "The Counterclaim is stating that Appellee

did not have proper and legal possession of the Note, and therefore was not the owner

in due course, during the time Appellee fraudulently led Appellant to believe that

Appellee was the owner in due course, and unlawfully began requesting payments from

Appellant. "

In the Appellee brief, again Wells Fargo came back with "The Counterclaim's

legal premise is that Wells Fargo began collecting payments prior to MERS executing

the notice of Assignment of Mortgage, and that this was fraudulent. "

In Roehrenbeck response brief, she highlighted the statement and corrected it,

again for the court by stating, "This is not true. The Counterclaim's legal premise is

that Appellee began collecting payments before Appellee had legal right to enforce the

8

Note... The whole basis of the Counterclaim pivots on whenAppeltee became the

owner of due course of the Note and when the Note was endorsed to Appellee. °'

Imposing a debt upon an entity, without legal right to the collection of the debt,

directly stating that legal right to the collection of the debt exists when it does not, and

directly stating that non-payment of the debt will cause forfeiture of a real asset is

fraudulent. The whole basis of the Counterclaim rests on when Wells Fargo became

the owner in due course of the Note and when the Note was assigned and transfered to

Wells Fargo. The only legal date associating Wells Fargo with the Note or the Mortgage

is the MERS assignment of Mortgage on March 7, 2012. Since Wells Fargo failed to

provide any other date to prove ownership of the Note, reasonable minds can agree that

it is possible that the Note and the Mortgage could have been assigned to Wells Fargo

at the same time.

Wells Fargo stated in its request for summary judgment that to establish fraud, a

plaintiff must allege (Appellant's response to each point will be bracketed {}, bold, and in

italics): (1) a representation {payment due statements}; (2) which is material to the

transaction at hand {payment due statements}; (3) made falsely, with knowledge of its

falsity, or with such reckless disregard for whether it is true or false that knowledge may

be inferred {payment due statements; the entire mortgage fraud scandal}; (4) with

the intent of misleading another into relying upon it {payment due statements}; (5)

justifiable reliance upon the representation {payment due statements}; and (6)

resulting in injury caused by the reliance {$9Z800.00 paid to Wells Fargo in principal

only, loss of tinae use of the $92,800.00 paid to Wells Fargo, and mental anguish,

shame, and financial hardship caused by Wells Fargo's rnalefaction}.

9

Mary Roehrenbeck did not sign a contract with Wells Fargo. Before Wells Fargo

imposed a contract upon Mary Roehrenbeck for hundreds of thousands of dollars, Wells

Fargo owned the responsibility to be certain that they properly secured all of the

documents and transfers legally and completely, having proper dates, notarization, and

done so in an auditable manner.

As stated in ORC 1349.51(B) and (C):

A lender shall not engage in a transaction, practice, or course of business that is

not in good faith or fair dealing, or that operates a fraud upon any person, in

connection with the attempted or actual making, purchase, or sale of any mortgage

loan.

If a lender fails to comply with Division (B) of this section, the affected consumer

may recover damages of not less than all compensation paid directly, or indirectly, to

lender from any source, plus reasonable attorney fees and court costs.

Not providing the date of transfer or assignment is not a course of business that is in

good faith or fair dealing and it does operate fraud upon Roehrenbeck, in connection

with the actual purchase of the Note in this case! The only date associated with a

transfer of any kind, is the transfer of the mortgage.

Wells Fargo has refused to provide the date that the Note was transferred or

assigned to Wells Fargo. If the assignment of the mortgage, alone, is a nullity, then it is

reasonable to request the date of the assignment and transfer of the Note because the

Note is the foundational instrument of the agreement.

The whole counterclaim is about when Wells Fargo received the assignment or

transfer of the Note. If they received the assignment or transfer of the Note sometime in

10

2006, as the affidavit by Angela Frye claims, the situation for Roehrenbeck would be a

lot different than if they received the assignment or transfer in February of 2013.

Therefore the date of assignment and transfer is of great importance. To illustrate the

importance, below are two possible scenarios:

Scenario 1 (Affidavit with the date of 2006 if it is determined to be valid):

Wells Fargo is claiming that in order for Roehrenbeck to become current

on the Note, Roehrenbeck must pay Wells Fargo more than $45,000,

Without making the payment, Roehrenbeck could be facing another

foreclosure.

Scenario 2 (Affidavit is invalid; Wells Fargo cannot provide a valid date):

Since Wells Fargo is showing what could be a valid note, with valid

stamps, but cannot provide a date of assignment and transfer of the Note

to Wells Fargo, Wells Fargo could restart the loan at Wells Fargo's

purchase value, apply the $92,300 (plus interest) Roehrenbeck already

paid to principle, and Roehrenbeck can again make payments according

to the terms of the agreement.

These scenarios illustrate why the date of the transfer is critical to Roehrenbeck

and to all homeowners in the state of Ohio. It stands between them being able to keep

their home or not.

The date of the assignment and transfer of the Note to Wells Fargo should be

readily available to Wells Fargo. In the case: Wells Fargo Delaware Trust Co., N.A. v.

Esparza, 2013-Ohio-2651, Wells Fargo was able to supply the actual Monthl®aylYear

date of when Wells Fargo received the Note (July 27, 2011)( paragraph 6) and the

, f^.

assignment of the Note (September 13, 2011)(end of paragraph 3). While Wells Fargo

Delaware Trust Co., N.A. v. Esparza, 2013-Ohio-2651 was not available for

Roehrenbeck to use in the Appeal as it was published months after the appeal was

submitted, and while the case and facts of Wells Fargo Delaware Trust Co., N.A. v.

Esparza, 2013-Ohio-2651 does not pertain to this appeal, the fact is that the dates of

the transfer and assignment of the Note were available to Wells Fargo. In the case

Wells Fargo Delaware Trust Co., N.A. v. Esparza, the dates were provided to the Court

without the Court or the appellant of the case asking for them. It is a logical question

then, if'l/Vells Fargo did have the Note prior to extracting payments from Roehrenbeck,

then why did they not provide these dates to the Court either on the onset of the

foreclosure action or later, after they were challenged by Roehrenbeck?

Proposition of Law No. 2: ORC 1303.03(A) does not define the promissory note ofthis case. The definition for promissory note can be found in ORC 1309.20(65)

ORC 1303.03(A) states that a promise to pay is a negotiable instrument if it

meets all of the requirements set forth in the definition. Requirement (3) states:

"it does not state anY other undertaking or instruction by the person promising or

ordering payment to do an act in the addition to the payment of money."

(Emphasis added)

Clearly there is an additional act other than the payment of money, which is the

granting of a security interest for its payment. Therefore, a Promissory Note, tied to a

Mortgage, does not meet the requirements of ORC 1303.03(A).

12

ORC 1303.02(B): If there is a conflict between this Chapter and either sections

1304.01 to 1304.04 of Chapter 1309, of the Revised Code, the provisions of sections

1304.01 to 1304.40 or Chapter 1309. of the Revised Code govern.

There is an obvious conflict between which Chapters to use, therefore ORC 1309

is the correct Chapter to use.

ORC 1309.201(A): A security agreement is effective according to its terms

between the parties, against purchasers of the collaterai, and against creditors.

This provides protection for the lending institutions as well as for the homeowner.

ORC 1309.201(65) "Promissory note" means an instrument that evidences a

promise to pay a monetary obligation, does not evidence an order to pay, and does not

contain an acknowledgment by a lending institution that the lending institution has

received for deposit a sum of money or funds.

A promissory note, secured by a mortgage, under the guidelines of ORC 1303.

does al(ow the lending institutions greater fluency but at increased risk to all

homeowners. Regardless of what code today's Court wishes to use to define a

promissory note, secured by a mortgage, the requirement of dated assignments and

transfers still exist, and should always exist, for the protection of a persons most

personal asset, their home.

If Wells Fargo Bank, N.A. v. Roehrenbeck, 2013-Ohio-5493 is not reversed, it will

be cited as proof that record keeping is not needed for promissory notes, secured by a

mortgage in Ohio.

;.,13

Proposition of Law No. 3: Affidavits need to be proven when chaNenged.

Wells Fargo is relying on this affidavit to try to prove that they were the owner in

due course of the promissory note while extracting payments from Roehrenbeck. The

records that Angela Frye reviewed were provided by a person with knowledge, but she

did not have personal knowledge of the records. And they could not have been the

complete business records because the business records would have had a proper date

of assignment and transfer.

It is well-established that a party's unsupported and self-serving assertions,

offered by way of affidavit, standing alone and without corroborating materials under

Civ. R. 56, will not be sufficient to demonstrate material issues of fact. Hitfstreet Fund Ifl,

L.P. v. Bloom, 12^" District, No. CA2009-07-178, 2010-Qhio-2961. Otherwise, the

function of Summary Judgment would be compromised by the practice of simply

submitting self-serving affidavits which contain nothing more than bare contradictions to

the evidence offered by the moving party. PavJik v. Cleveland, Cuyahoga App. No.

92176, 2009-Ohio-3073, ¶21.

Since no month or date was provided on the affidavit by Angela Frye, the

business records referred to by Angela Frye, in her affidavit, were not complete or

accurate. Logical minds can only come to but one conclusion, Wells Fargo does not

have a valid date showing when they became owners of the promissory note of this

case, or at least not one that they wish to provide to the Court. If Wells Fargo had a

valid date as to when the promissory note was transferred or assigned to them, then

Wells Fargo would have included it in the affidavit or would have provided the court the

actual document. Instead, Wells Fargo used the information provided by Roehrenbeck,

``"14

within the counterclaim, to provide an incomplete date on the Affidavit. The affidavit is

invalid.

Ohio Rules of Evidence 104(B): When the relevancy of evidence depends upon

the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the

introduction of evidence sufficient to support a finding of the fulfillment of the condition.

Ohio Rules of Evidence 401: "Relevant evidence" means evidence having any

tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.

Wells Fargo did not introduce any relevant evidence that was sufficient to support

their claim that they had the assignment of the Note prior to extracting payments from

Roehrenbeck.

Proposition of Law No. 4: Summary Judgment should not be granted when thereare genuine issues to the facts of the case.

The Summary Judgment should not have been granted in favor of Wells Fargo

because there are genuine issues to the facts of the case where the law is not being

followed. The counterclaim was based on the missing information associated with

when Wells Fargo became the owner in due course of the Note and when the Note

was assigned and transferred to Wells Fargo.

All of the other words and arguments used to disguise these facts are immaterial

to the point that Wells Fargo has yet to supply any facts associated with the date of

assignment and transfer of the Note.

15

CONCLUSION

For the reasons discussed above, this case involves matters of public and great

general interest. The appellant requests that this court accept jurisdiction in this case

so that the important issues presented will be reviewed on the merits.

Respectfully su mi e ,

Mary Roehrenbeck264 Isaac Tharp St.Pataskala, OH 43062(614) 370-0135kroeh a^msn com

Certificate of Service:

I certify that a copy of this Notice of Appeal was sent by ordinary U.S. mail to counselfor appellee, Scott A. King, Terrance A. Mebane, Thompson Hine LLP, 41 South High

Street, Suite 1700, Columbus, OH 43215 and to co-counsel for appellee, Matthew J.Richardson, Holly N. Wolf, Manley Deas Kochalski LLC, PO Box 165028, Columbus,OH 43216 on January 27, 2014,

Respectfully subm

Mary K.` Roehrenbeck264 Isaac Tharp St.Pataskala, OH 43062kroeh@msn.com614-370-0135

a 6f.

COURT OF APPEALSLICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

WELLS FARGO BANK, N.A.

Plaintiff-Appellee

-vs-

MARY K. ROEHRENBECK

Defendant-Appellant

CHARACTER OF PROCEEDING

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Pfaintiff-Appellee

SCOTT A. KINGTHOMPSON HINE LLP10050 Innovation Drive, Suite 400Miamisburg, Ohio 45401

TERRANCE A. MEBANETHOMPSON HINE LLP41 South High Street, Suite 1700Columbus, Ohio 43215

JUDGES:Hon. Sheila G. Farmer, P. J.Hon. John W. Wise, J.Hon. Patricia A. Delaney, J.

Case No. 13 CA 29

OPINlON

f

V n q^? ^'y ♦ .

" vr ^^,;y(j ^ t

LsCOUN T Y 13 I1}'• - f .^ # 't ^ : r^ (, .

Civil Appeal from the Court of CommonPleas, Case No. 12 CV 0779

Affirmed

For Defendant-Appellant

MARY K. RC.QEHRENBECKPRO SE264 Isaac Tharp StreetPataskala, Ohio 43062

Licking County, Case No. 13 CA 29

vvise, J.

2

{¶°t} Defendant-Appeliant Mary K. Roehrenbeck appeals the judgment of the

Licking County Court of Common Pleas granting Plaintiff-Appellee Wells Fargo Bank,

NA's motion for summary judgment.

STATEMENT OF THE CASE AND FACTS

{¶2} The facts in this case are as follows:

{13} On October 24, 2006, Appellant Mary K. Roehrenbeck executed a

promissory note (the "Note") in the principal amount of $217,1183.00, plus interest at the

rate of 5.5% per year, payable to Beazer Mortgage Corporation ("Beazer Mortgage")

Beazer Mortgage specially indorsed the Note to American Brokers Conduit ("American

Brokers"), who specially indorsed it to Wells Fargo, who indorsed it in blank. Wells

Fargo has had possession of the original Note since 2006.

{14} On October 24, 2006, to secure payment of the Note, Appellant

Roehrenbeck also executed an open-end mortgage against the Property in favor of

Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Beazer

Mortgage, its successors and assigns.

{¶5} On March 7, 2012, MERS executed a notice of Assignment of Mortgage to

Wells Fargo.

{¶6} On June 6, 2012, Wells Fargo commenced this action to recover the

balance due on the Note and to foreclose the Mortgage.

{17} On July 6, 2012, Appellant Roehrenbeck filed an untimely answer.

{18} On July 10, 2012, Wells Fargo filed a motion for default judgment.

9 p

Licking County, Case No. 13 CA 29 3

{19} On July 12, 2012, the trial court granted a judgment in favor of Wells

Fargo.

{110} On August 6, 2012, Appellant Roehrenbeck filed a notice of appeal to this

Court, Case No. 2012 CA 00068.

{111} On August 20, 2012, the parties filed a joint motion to dismiss the appeal.

(112) On September 4, 2012, this Court entered an agreed order dismissing the

appeal.

{113} On September 13, 2012, Appellant Roehrenbeck filed a motion for leave

to file an amended Answer.

{¶14} On September 17, 2012, the trial court issued an Order vacating the

judgment.

{115} On October 24, 2012, the trial court held a hearing on Appellant

Roea;^-enbeck's mot;on for leave. That same day, the trial court issued an Entry granting

Appellant Roehrenbeck leave to file an amended answer.

(1161 On November 13, 2012, Appellant Roehrenbeck filed her Amended

Answer and Counterclaim. The Counterclaim alleges that in January, 2007, Wells Fargo

began sending requests to Appellant with knowledge that it was not the "owner" of the

Note when it attempted to collect those payments. Appellant claims that Wells Fargo

misled her into believing that it was entitled to do so, which allegedly violated a fiduciary

duty that she claims Wells Fargo owed to her. The basis of the Counterclaim is that

Wells Fargo began collecting payments prior to MERS executing the notice of

Assignment of Mortgage, and that this was fraudulent. The Counterclaim asserts two

claims: (1) fraud; and (2) punitive damages.

^ 83

Licking County, Case No. 13 CA 29 4

{117) On December 12, 2012, Wells Fargo filed a Motion to Dismiss the

Counterclaim.

(118) On January 7, 2013, Appellant Roehrenbeck filed her "Objection to Motion

to Dismiss."

{119} On January 14, 2013, the trial court issued a Judgment Entry, finding that

Wells Fargo's Motion "presents matters outside the pleadings," stating that the court

would treat the Motion as one for summary judgment, and instructing Wells Fargo to file

a supplemental memorandum and any Rule 56 evidence.

(¶20) On February 15, 2013, Wells Fargo filed a motion for extension of time to

file its supplemental memorandum.

(121) On February 28, 2013, Wells Fargo filed a Supplemental Memorandum.

(T22) On March 11, 2013, Appellant Roehrenbeck filed a memorandum contra

to the Supplemental Memorandum.

{123} On March 12, 2013, the trial Court issued a Memorandum of Decision,

and on March 21, 2013, a judgment Entry, dismissing the Counterclaim. The Judgment

Entry also granted Wells Fargo 75 days to file a dispositive motion on the Complaint,

(124) Defendant-Appellant now appeals, assigning the following errors for

review:

{125} "f. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT

(SIC) TO PLAINTIFF, WELLS FARGO, WITHOUT ALLOWING DEFENDANT PROPER

TIME TO FILE A MEMORANDUM CONTRA TO PLAINTIFF'S SUPPLEMENTAL

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS COUNTERCLAIM.

^h

Licking County, Case No. 13 CA 29 5

{128} "ii. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT

(SIC) TO PLAINTIFF, WELLS FARGO, WHEN THE BASIS OF PLA1NTiFF'S

REASONING WAS INCORRECTLY FOCUSED ON UCC ARTICLE 3, FOR

NEGOTIABLE INSTRUMENTS, INSTEAD OF UCC ARTICLE 9, FOR SECURITY

INSTRUMENTS, AS A MATTER OF LAW.

{f,27} "lil. THE TRIAL COURT ERRED IN GRANTING SUMMARY

JUDGEMENT (SIC) TO PLAINTIFF, WELLS FARGO, WHEN THE AFFIDAVIT

PROVIDED DID NOT STATE A VALID DATE AS TO WHEN THE NOTE `JVA S

TRANSFERRED OR ASSIGNED TO PLAINTIFF

{128} "(V. THE TRIAL COURT ERRED IN GRANTING SUMMARY

JUDGEMENT (SIC) TO PLAINTIFF, WELLS FARGO, BECAUSE REASONABLE

MINDS CANNOT COME TO BUT ONE CONCLUSION."

(¶29) "Summary Judgment Standard"

{¶301 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), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides,

in pertinent part:

{131) "Summary judgment shall be rendered forthwith if the pleadings,

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

evidence in the pending case, and written stipulations of fact, if any, timely filed in the

action, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. * * * A summary judgment shall not be

rendered unless it appears from such evidence or stipulation and only therefrom, that

0s

Licking 11eounty, Case No. 13 CA 29 6

reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, such party being

entitled to have the evidence or stipulation construed most strongly in his favor."

(132) Pursuant to the above rule, a trial court may not enter a summary

judgment if it appears a material fact is genuinely disputed. The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion

that the non-moving party has no evidence to prove its case. The moving party must

specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the

non-moving party to set forth specific facts demonstrating there is a genuine issue of

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing

Dresher v. Burt, 75 Ohio St.3d 280, 1996-C)hio-1 07.

(133) It is based upon this standard that we review appellant's assignments of

error.

{134} In her First Assignment of Error, Appellant argues that the trial court erred

in granting Plaintiff-Appellee an extension of time to file its supplemental memorandum

in support of its motion without granting Defendant-Appellant an extension of time to

respond.

^ F6

Licking County, Case No. 13 CA 29 7

{¶35) Upon review, we find that when the trial court converted Appellee's 12(B)

motion to dismiss to a Civ.R. 56 motion for summary judgment, the trial court set the

following briefing schedule:

{136} "Plaintiff shall file a supplemental motion and/or any Civ.R. 56 materials in

support of its motion on or before February 15, 2013. Defendant shall file a

memorandum contra and any supporting materials on or before March 1, 2013. Plaintiff

may file a reply on or before March 8, 2013. A non-oral hearing shall be set for March

'i 1, 2013." (See Judgment Entry, Jan. 14, 2013).

{137} The following day, February 15, 2013, Appellee moved the trial court for a

fourteen (14) day extension of time to file its supplemental memorandum in support,

which the trial court granted the same day.

{138} Appellee filed its supplemental memorandum on February 28, 2013, and

Appellant filed her Memorandum Contra on March 11, 2013. The trial court did not issue

its decision until March 12, 2013.

{139} As Appellant did not request additional time to respond and did, in fact, file

a response in this matter prior to the trial court's ruling, we find Appellant's argument to

be without merit.

{¶40} Appellant's First Assignment of Error is overruled.

!!., Ill., IV.

(¶41) As Appellant's remaining three Assignments of Error challenge the trial

court's decision granting Appellee's motion to dismiss/motion for summary judgment,

we shall address them together.

yg?

Licking County, Case No. 13 CA 29 8

{¶42} Appellant's counterclaim in this matter contained a claim for fraud,

claiming that Wells Fargo fraudulently represented that it was the. person entitled to

collect under the Note. Appellant herein argues that Appellee's reliance on UCC Article

3 was misplaced and that the affidavit in support of its motion failed to provide the date

of assignment of the note.

{¶43} Upon review, we find that the promissory note in question is a "negotiable

instrument" as defined in R.C. 1303.03(A), which states:---^.

{$44} `(A) Except as provided in divisions (C) and (D) of this section, "negotiable

instrument" means an unconditional promise or order to pay a fixed amount of money,

with or without interest or other charges described in the promise or order, if it meets all

of the following requirements:

{¶45) "(1) it is payable to bearer or to order at the time it is issued or first comes

into possession of a holder.

{146} "(2) It is payable on demand or at a definite time.

{¶47} "(3) It does not state any other undertaking or instruction by the person

promising or ordering payment to do any act in addition to the payment of money, ..."

{148} Ohio's version of the Uniform Commercial Code governs who may enforce

a note. R.C. §1301.01 et seq. Article 3 of the UCC governs the creation, transker and

enforceability of negotiable instruments, including promissory notes secured by

mortgages on real estate. Fed. Land Bank of Louisville v. Taggart, 31 Ohio St.3d 8, 10,

508 N.E.2d 152 (1987).1

' R.C. §1301 01 was repealed by Am.H.B. No. 9, 2011 Ohio Laws File 9, effective June29, 2011. That act amended the provisions of R.C. §1301.01 and renumbered thatsection so that it now appears at R.C. 1301.201. Because R.C. §1301.201 only applies

4BP

Licking County, Case No. 13 CA 29 9

{149} Under R.C. §'( 301.01, "holder" means either of the following: "(a) if the

instrument is payable to bearer, a person who is in possession of the instrument; "(b) if

the instrument is payable to an identified person, the identified person when in

possession of the instrument."

{T5O} As set forth above, Appellant executed a promissory note payable to

Beazer Mortgage, Beazer specially indorsed the Note to American Brokers Conduit,

who specially indorsed it to Wells Fargo, who indorsed it in blank.2 Wells Fargo has had

possession of the original Note since 2006. Wells Fargo is therefore the holder of the

Note which entitles it to enforce the Mortgage securing its repayment.

{%51} Further, we find no requirement that indorsements on negotiable

instruments be dated.

(¶52) Based on the foregoing, we find that the trial court did not err in granting

s.LSrnnzary judgment in favor of AppeEEee and dismissing Appellant's countercEaini in this

rnatter,

to transactions entered on or after June 29, 2011, we apply R.C. ^1301.01 to thisappeal.2 R.C. 1303.25(B) states: "`Blank indorsement' means an instrument that is made bythe holder of the instrument and that is not a special indorsement. When an instrumentis indorsed in blank, the instrument becomes payable to bearer and may be negotiatedby transfer of possession alone until specially indorsed,'

4Bq

Licking County, Case No. 13 CA 29 10

{153) Appellant's Second, Third and Fourth Assignments of Error are overruled.

{154} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking Couniy, Ohio, is affirmed.

By: Wise, J.

Farmer, P. J., and

Delaney, J., concur.

JOHN W. tNl

JWW/d 1120

1-

___--:^^/.,._.

HON. SHEIYA G. FARMER

IA^

HON. PATRICIA A. DELANEY

4r

COURT OF APPEALSLICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

WELLS FARGO DELAWARE TRUST JUDGES:CO., N.A. Hon. WiIliam B. Hoffman, P.J.

Hon. Sheila G. Farmer, J.Plaintiff-Appellee Hon. Patricia A. Delaney, J.

-vs- Case No. 13-CA-23

ANTHONY ESPARZA, ET AL.

Defendants-AppellantsOPINION

CHARACTER OF PROCEEDING

JUDGMENT:

DATE OF JUDGMENT ENTRY

Appeal from the Licking County CommonPleas Court, Case No. 2012 CV 00296

Affirmed

June 21, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

MATTHEW J. RICHARDSONManley Deas Kochalski, LLCP.O. Box 165028Columbus, Ohio 43216-5028

JOHN SHERRODMills, Mills, Fiely & Lucas, LLC503 South Front Street, Ste 240Columbus, Ohio 43215

Licking County, Case No. 13-CA-23 2

Hoffman, P.J.

(11) Defendants-appellants Anthony Esparza and Betsy Esparza appeal the

February 14, 2013 Judgment Entry and Decree in Foreclosure entered by the Licking

County Court of Common Pleas, which granted summary judgment in favor of plaintiff-

appellee Wells Fargo Delaware Trust Company, N.A. and ordered the subject property

be foreclosed and sold.

STATEMENT OF THE CASE

{72} On or about August 18, 2003, Appellants executed a promissory note ("the

Note") in the original amount of $379,100.00. Appellants secured the Note with a

mortgage encumbering real property commonly known as 1763 Welsh Hills Road,

Granville, Ohio 43023 ("the Property"). Appellants defaulted on the loan in April, 2009.

{13} Wells Fargo acquired the Note as trustee for Vericrest Opportunity Loan

Trust 2011-NPL1. Wells Fargo initiated a foreclosure action against Appellants relative

to the Property on March 2, 2012. Attached to the complaint was a copy of the Note

showing an indorsement to CitiMortgage. The trial court granted Wells Fargo leave to

amend its complaint on April 25, 2012. To the amended complaint, Wells Fargo

attached a copy of the Note filed with the original complaint as well as two allonges.

The first allonge shows an indorsement from CitIVlortgage to U.S. Bank as the trustee

for the LSF7 Bermuda NPL 1 Trust. The second allonge shows an indorsement from

U.S. Bank to blank. Wells Fargo also attached copies of a complete and unbroken

chain of mortgage assignments from the loan originator, lndyMac Bank, F.S,B. to Wells

Fargo "together with the promissory note secured by such mortgage and all sums of

Licking County, Case No. 13-CA-23 3

money due and to become due on such promissory note". The Note was assigned to

Wells Fargo on September 13, 2011.

{14) Wells Fargo filed a motion for summary judgment on September 25, 2012.

In support of its motion, Wells Fargo attached the affidavit of Neha Modi, a loan

servicer. Modi authenticated copies of the Note, the Mortgage, the assignments of

mortgage, and the notice of default sent to Appellants. The copy of the Note was

accurate and contained all of the essential terms, however, Modi failed to attach and

authenticate copies of the allonges.

{15} Appellants filed a memorandum in opposition, asserting a genuine issue of

material fact existed as to whether Wells Fargo was in possession of the Note at the

time of the filing of its complaint in foreclosure, March 2, 2012. Appellants further

argued a genuine issue of material fact also existed as to whether Wells Fargo had

standing to bring the lawsuit and enforce the Note.

{¶6} Wells Fargo filed a reply brief which included a supplemental affidavit from

Jeannette Bochniak, a loan servicing agent. Bochniak averred Wells Fargo obtained

possession of the Note on July 27, 2011. In addition to the two allonges filed with the

amended complaint, two additional allonges were attached to the Bochniak affidavit,

which showed indorsements from U.S. Bank to Wells Fargo, and Wells Fargo to blank.

{17} Via Judgment Entry and Decree in Foreclosure filed February 14, 2012,

the trial court granted summary judgment in favor of Wells Fargo, and ordered the

Property foreclosed and sold at a sheriff's sale.

{18} It is from this judgment entry Appellants appeal, raising as their sole

assignment of error:

Licking County, Case No. 13-CA-23 4

{19} "E. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MtOTION

FOR SUMMARY JUDGMENT."

{110} This case comes to us on the accelerated calendar. App. R. 11. 1, which

governs accelerated calendar cases, provides, in pertinent part:

(E) Determination and judgment on appeal. The appeal will be

determined as provided by App. R. 11.1. It shafl be sufficient compliance

with App. R. 12(A) for the statement of the reason for the court's decision

as to each error to be in brief and conclusionary form. The decision may

be by judgment entry in which case it will not be published in any form.

{11 #) One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusionary decision more quickly than in a case

on the regular calendar where the briefs, facts and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist.1983),

STANDARD OF REVIEW

{112} Summary judgment proceedings present the appellate court with the

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

Srtaiddy V. The INedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As

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

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996),

{113) 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

Licking County, Case No. 13-CA-23 5

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, lnc,

50 Ohio St.2d 317, 364 N.E.2d 267 (1977).

{114} 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, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: " * * * 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

Licking County, Case No. 13-CA-23 6

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

Williams v. First United Church of Christ, 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).

{715} Appellants' sole assignment of error relates to the propriety of the trial

court's granting of summary judgment in favor of Wells Fargo. Specifically, Appellants

contend a material issue of fact exists concerning whether Wells Fargo was the holder

of or entitled to enforce the Note as the affidavits submitted by Wells Fargo in support of

summary judgment were in direct conflict and authenticated two different promissory

notes. We disagree.

{116} In support of their position, Appellants rely on the Ohio Supreme Court's

holding in Byrd v. Smith, 110 Ohio St.3d 24 (2006): "A movant's contradictory affidavit

will prevent summary judgment in that party's favor." Id. at 31.

{¶17} We do not find the Modi and Bochniak affidavits are necessarily

inconsistent. The Bochniak affidavit compliments the Modi affidavit, providing additional

evidence of Wells Fargo's status as the mortgagee of record and the entity with physical

possession of the Note prior to the filing of the original complaint on March 2, 2012.

The Modi and Bochniak affidavits do not describe different promissory notes, but rather

the Bochniak affidavit expands and clarifies the information contained in the Modi

affidavit. The evidence in support of the affidavits reflect different versions of the same

Note. The evidence clearly establishes Wells Fargo was in possession of the Note and

Mortgage prior to the filing of the original complaint and establishes an unbroken chain

of title.

Licking County, Case No. 13-CA-23 7

{118} We find the trial court correctly concluded no genuine issue of material

fact exists concerning the Bank's possession of the note. Therefore, the trial court did

not err in granting summary judgment to the Bank.

{119} Appellants' assignment of error is overruled.

{120} For the forgoing reasons, the judgment of the Licking County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

s1 Vltilliam B. HoffmanHON. WrLLIAlItI B. HOFFMAN

si Sheila G. FarmerN. SHEILA G. FARMER

s/ Pafricia A. DelaneyHON. PATRICIA A. DELANEY

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIOFIFTH APPELLATE DISTRICT

WELLS FARGO DELAWARE TRUSTCO., N.A.

Plaintiff-Appellee

-vs- JUDGMENT ENTRY

ANTHONY ESPARZA, ET AL.

Defendants-Appellants Case No. 13-CA-23

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

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

sl William B. HoffmanHON. WILLIAM B. HOFFMAN

sl St^ei.la G. FarmerHON. SHEILA G. FARMER

s! Patricia A. DelaneyHON, PATRICIA A. DELANEY