[Cite as Deutsche Bank Natl. Trust Co. v. Baxter, 2017-Ohio-1364.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104585



     DEUTSCHE BANK NATIONAL TRUST COMPANY,
                     ETC.

                                                           PLAINTIFF-APPELLEE

                                                     vs.

 MICHELLE M. BAXTER, A.K.A. MICHELLE BAXTER,
                   ET AL.
                                                           DEFENDANTS-APPELLANTS



                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-14-834668

        BEFORE: McCormack, J., Kilbane, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                          April 13, 2017
ATTORNEY FOR APPELLANT

Edward F. Herman
614 Superior Ave., Ste 820
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

For Deutsche Bank National Trust Company

Justin M. Rich
Manley, Deas & Kochalski L.L.C.
P.O. Box 165028
Columbus, OH 43216

Scott A. King
Terry W. Posey, Jr.
Thompson Hine L.L.P.
10050 Innovation Drive, Suite 400
Dayton, OH 45342

Also listed:

New Century Mortgage Corporation
Attn: Legal Department
999 Central Avenue, Suite 208
Woodmere, NY 11598
TIM McCORMACK, J.:

       {¶1}    Defendants-appellants, Michelle M. Baxter and Norman T. Baxter, III,

appeal from a judgment of the Cuyahoga County Court of Common Pleas granting a

motion for summary judgment filed by Deutsche Bank National Trust Company

(“Deutsche Bank”) in a foreclosure action.   After a review of the record and applicable

law, we affirm the trial court’s judgment.

Substantive Facts and Procedural Background

       {¶2} In 2005, Michelle M. Baxter and Norman T. Baxter executed a promissory

note in the amount of $143,450 in favor of New Century Mortgage Corporation (“New

Century”).    The note was secured by a mortgage executed by the Baxters against a house

they owned located on Valley View Avenue, Cleveland.        The Baxters defaulted under

the note sometime in 2009.

       {¶3} In December 2009,       Deutsche Bank filed a foreclosure complaint against

the Baxters in CV-09-711803. The complaint contained an unindorsed copy of the note

and a February 2009 assignment of the mortgage from New Century to Deutsche Bank.

In October 2010, the trial court entered a judgment in favor of Deutsche Bank.

       {¶4} More than three years later, on May 19, 2014, the Baxters filed a “Motion to

Vacate Void Judgment and Set Aside Sheriff’s Sale,” alleging Deutsche Bank lacked

standing to file the foreclosure case because the assignment of the mortgage was executed

under a power of attorney granted to Wells Fargo Bank but the power of attorney was
revoked due to New Century’s filing for bankruptcy in 2007, prior to the assignment of

the mortgage to Deutsche Bank in 2009.

       {¶5} On June 30, 2014, the trial court issued a judgment in favor of the Baxters,

finding that Deutsche Bank failed to establish standing to bring the foreclosure action.

The trial court explained that the note attached to the complaint lacked any indorsement

and that the assignment of the mortgage was invalid because New Century’s power of

attorney was revoked under bankruptcy law.       The trial court concluded Deutsche Bank

lacked standing.   It vacated the judgment of foreclosure and dismissed the foreclosure

case without prejudice.

       {¶6} On October 22, 2014, Deutsche Bank refiled the foreclosure action against

the Baxters (the instant case), alleging that it was a “person entitled to enforce the note.”

Attached to its complaint was a copy of the note indorsed in blank by New Century and

the February 2009 assignment of mortgage from New Century to Deutsche Bank,

executed by Wells Fargo Bank as Attorney-in-Fact for New Century.

       {¶7} On May 8, 2015, Deutsche Bank amended its complaint, adding the original

mortgagee New Century as a defendant.        It also added a count seeking     a declaratory

judgment that Deutsche Bank was the person entitled to enforce the note and mortgage

and that New Century had transferred all rights and interests in the note and mortgage to

Deutsche Bank.

       {¶8} Subsequently, Deutsche Bank filed a motion for default against New

Century and for summary judgment against the Baxters. Attached to the complaint was
an affidavit by Darenique L. Jamison, Vice President Loan Documentation of Wells

Fargo Bank, servicing agent for Deutsche Bank.          She stated that she had personal

knowledge of this loan matter from her examination of the business records and that at

the time of the filing of the present complaint, Deutsche Bank has been in possession of

the note and the note is indorsed in blank. A copy of the blank-indorsed note was

attached to the affidavit.

       {¶9} In response to Deutsche Bank’s motion for summary judgment, the Baxters

argued that the trial court had ruled in the prior case that Deutsche Bank was not properly

assigned the mortgage due to the revocation of the power of attorney under the

bankruptcy law and that res judicata, specifically issue preclusion, prevented the

relitigation of the issue regarding the deficient assignment of the mortgage.   The Baxters

also argued that it could be inferred that the note was indorsed by New Century after New

Century filed bankruptcy and therefore not enforceable by Deutsche Bank.

       {¶10} The magistrate conducted a hearing on this matter.            At the hearing,

Deutsche presented the original “wet ink” note indorsed in blank by New Century. After

the hearing, the magistrate issued a decision granting Deutsche Bank’s motion for default

against New Century and for summary judgment against the Baxters. Regarding the

summary judgment motion, the magistrate noted that she reviewed the “wet-ink” original

of the note and concluded that Deutsche Bank has physical possession of the note

indorsed in blank.     The magistrate found Deutsche Bank to be a person entitled to

enforce the note, because it is a holder of the note by virtue of being a person in
possession of a note indorsed in blank.     The magistrate furthermore cited this court’s

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

2013-Ohio-1657, for its holding that the mortgage “follows the note” and that when a

note is secured by a mortgage, the note constitutes the evidence of the debt such that a

negotiation of the note operates as an equitable assignment of the mortgage, even though

the mortgage is not properly assigned or delivered.   The magistrate therefore determined

that Deutsche Bank was entitled to a declaratory judgment that it is the holder of the note

and mortgage and granted foreclosure.

      {¶11} The Baxters filed objections to the magistrate’s decision, claiming that

issue preclusion prevents the relitigation of whether Deutsche Bank was the holder of the

mortgage and that there was a genuine issue of material fact regarding whether Deutsche

Bank was the holder of the note and had standing to enforce the note.        The trial court

overruled the objections and issued a judgment declaring that New Century had no rights

to enforce the note or mortgage and Deutsche Bank was entitled to enforce the note and

mortgage.   The trial court granted foreclosure in favor of Deutsche Bank.

      {¶12} The Baxters now appeal, raising two assignments of error, which state:

      1.     The trial court erred in granting foreclosing bank’s summary
             judgment motion and granting it declaratory relief when the evidence
             before the trial court, construed most strongly in favor of the
             homeowner, showed that foreclosing bank may not have authority to
             enforce promissory note under operation of U.S. bankruptcy law
             despite having physical possession of it with a facially-valid
             indorsement.

      2.     The trial court erred in granting summary judgment to foreclosing
             bank when doing so required the trial court to make a finding of fact
              regarding assignment of the mortgage contrary to findings made in a
              previous case in an order that was final under R.C. 2505.02 and the
              case law, so that the doctrine of issue preclusion barred relitigation
              of those decided facts.

Standard of Review

       {¶13} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine

issue as to any material fact exists; (2) the party moving for summary judgment is entitled

to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion, which is adverse to

the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d

267 (1977). Initially, the moving party must point to evidentiary materials to show that

there are no genuine issues of material fact and they are entitled to judgment as a matter

of law. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the moving

party meets this burden, a reciprocal burden is placed on the nonmoving party to show

that there is a genuine issue of fact for trial. Id. We review the trial court’s decision on

summary judgment de novo, using the same standard that the trial court applies under

Civ.R. 56(C).     Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996).

Analysis

       {¶14} Regarding the first assignment of error, under the current case law, Deutsch

Bank has standing and is entitled to enforce the note if it could establish either that it was

the holder of the note or it had been assigned the mortgage. See, e.g., CitiMortgage, Inc.
v. Patterson, 2012-Ohio-5894, 984 N.E.2d 392, ¶ 21 (8th Dist.); U.S. Bank Natl. Assn. v.

Gray, 10th Dist. Franklin No. 12AP-953, 2013-Ohio-3340, ¶ 27.

       {¶15} Here, Deutsche Bank established that it was the holder of the note at the

time the complaint was filed — its possession of the blank-indorsed note was

demonstrated by the attachment of a copy of the note to Jamison’s affidavit, coupled with

her statement concerning Deutsche’s Bank’s possession of the note. See, e.g., Najar, 8th

Dist. Cuyahoga No. 98502, 2013-Ohio-1657, at ¶ 62; Bank of N.Y. Mellon v. Morgan, 2d

Dist. Montgomery No. 25664, 2013-Ohio-4393, ¶ 50; BAC Home Loans Servicing, L.P. v.

Untisz, 11th Dist. Geauga No. 2012-G-3072, 2013-Ohio-993, ¶ 20; U.S. Bank, N.A. v.

Adams, 6th Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 16-18. In addition, Deutsche

Bank produced the original note in open court for an examination by the magistrate. By

virtue of its possession of the note indorsed in blank, Deutsche Bank demonstrated it is

the holder of the note and entitled to enforce the note.   Consequently, the burden shifted

to the Baxters to show the existence of a genuine issue of material fact to avoid summary

judgment. Dresher at 293.

       {¶16} The Baxters argue the indorsement of the note by New Century may be

improper, alleging that the indorsement of the note by New Century could have occurred

after its bankruptcy filing.   A note indorsed in blank is a bearer paper, and it can be

enforced by any person in possession. In U.S. Bank N.A. v. Bobo, 4th Dist. Athens No.

13CA45, 2014-Ohio-4975, which also involved New Century as the original mortgagee,

the borrower claimed there was a genuine issue of material fact whether the note secured
by the mortgage was transferred to the plaintiff foreclosing bank after New Century filed

for bankruptcy. The Fourth District reasoned that the issue was irrelevant because the

bank had possession of the original note indorsed in blank by New Century at the time it

filed its foreclosure complaint. Id. at ¶ 25-26.   Similarly here,   Deutsche Bank’s right

to enforce the note indorsed in blank as a person in physical possession of the note is not

affected by New Century’s bankruptcy filing.

       {¶17} As to Deutsche Bank’s right to enforce the mortgage, the Baxters claim that

the assignment of mortgage was invalid because the power of attorney granted to Wells

Fargo Bank was revoked due to New Century’s bankruptcy filing. We first note that a

mortgagor lacks standing to challenge a mortgage assignment, if the mortgagor is neither

a party to, nor a third-party beneficiary of, the assignment of the mortgage. Bank of New

York Mellon v. Froimson, 8th Dist. Cuyahoga No. 99443, 2013-Ohio-5574, ¶ 17. See

also Bank of Am., N.A. v. Hizer, 6th Dist. Lucas No. L-13-1035, 2013-Ohio-4621, ¶ 22.

       {¶18} Furthermore, the allegation of improper assignment is irrelevant because

under Ohio case law, the mortgage “follows the note” it secures. Najar, 8th Dist.

Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 65, citing U.S. Bank N.A. v. Marcino, 181 Ohio

App.3d 328, 2009-Ohio-1178, 908 N.E.2d 1032, ¶ 52 (7th Dist.). The physical transfer

of the note indorsed in blank constitutes an equitable assignment of the mortgage

regardless of whether the mortgage is validly assigned.       Id.    See also, e.g., Wells

Fargo Bank, N.A. v. Byers, 10th Dist. Franklin No. 13AP-767, 2014-Ohio-3303; Morgan,
2d Dist. Montgomery No. 25664, 2013-Ohio-4393; M & T Bank v. Strawn, 11th Dist.

Trumbull No. 2013-T-0040, 2013-Ohio-5845.

       {¶19} Finally, we note that New Century was named as a party in the amended

foreclosure complaint.       It defaulted without asserting any interest in the subject note or

mortgage.     The first assignment of error lacks merit.

       {¶20} Under the second assignment of error, the Baxters claim that the trial’s

court’s “finding” in the prior case (CV-09-711803) that the mortgage assignment was

invalid cannot be relitigated due to issue preclusion, one of the two notions under the

doctrine of res judicata.     This claim lacks merit.

       {¶21} In the prior case, the Baxters moved to vacate the judgment of foreclosure

and set aside the sheriff’s sale based on their claim that Deutsche Bank lacked standing to

bring the foreclosure action.          The trial court agreed, 1 vacating the judgment of

foreclosure on the ground that its subject matter jurisdiction was not invoked due to

Deutsche Bank’s failure to establish standing, noting that the note lacked indorsement

and the mortgage was not properly assigned to Deutsche Bank.                         The court then

dismissed the foreclosure case without prejudice in order to allow Deutsche Bank to refile

the case, consistent with the Supreme Court of Ohio’s decision in Fed. Home Loan

Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214.


          We note that the trial court’s order vacating the prior foreclosure decree and dismissing the
       1


case was issued several months before the Supreme Court of Ohio’s decision in Bank of Am., N.A. v.
Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, which clarified the law and held that a
plaintiff bank’s alleged lack of standing would not affect the trial court’s subject-matter jurisdiction
and that lack of standing cannot used to collaterally attack a judgment in foreclosure
       {¶22} It is axiomatic that a dismissal without prejudice is not an adjudication on

the merits and therefore not a final appealable order. Lovins v. Kroger Co., 150 Ohio

App.3d 656, 782 N.E.2d 1171 (2d Dist.2002). “Because res judicata only applies to

‘valid, final judgments,’ an order must be final and appealable to preclude further

litigation of the issue.”     Fifth Third Mtge. Co. v. Goodman Realty Corp., 3d Dist.

Hancock No. 5-08-30, 2009-Ohio-81, ¶ 20.         “‘A dismissal without prejudice leaves the

parties as if no action had been brought at all.’” Denham v. New Carlisle, 86 Ohio St.3d

594, 596, 716 N.E.2d 184 (1999), quoting Deville Photography, Inc. v. Bowers, 169 Ohio

St. 267, 272, 159 N.E.2d 443 (1959).

       {¶23} The Baxters claim the trial court’s order in the prior case vacating the

judgment of foreclosure is a final order and therefore res judicata bars the relitigation of

the issue of improper mortgage assignment. The trial court in the prior case did more than

vacate the prior judgment of foreclosure, however.           It dismissed the case without

prejudice, consistent with Schwartzwald, as if the case had never been filed.

Schwartzwald permits plaintiff banks to establish standing upon refiling after a

foreclosure case is dismissed due to a failure to establish standing. Res judicata has no

effect in the refiled case.   In any event, the trial court’s finding in the previous case that

the mortgage was improperly assigned is immaterial. As we have discussed in the

foregoing analysis, the physical transfer of a note indorsed in blank constitutes an

equitable assignment of the mortgage.       The second assignment of error lacks merit.

       {¶24} Judgment affirmed.
       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



_________________________________
TIM McCORMACK, JUDGE

MARY J. BOYLE, J., CONCURS;
MARY EILEEN KILBANE, P.J., DISSENTS (WITH SEPARATE OPINION
ATTACHED)


MARY EILEEN KILBANE, P.J., DISSENTING:

       {¶25} I respectfully dissent and would find that the trial court erred by granting

summary judgment in favor of Deutsche Bank.          In 2009, Deutsche Bank commenced a

foreclosure action against the Baxters based on the same note and mortgage at issue in

this action.   After having granted foreclosure to Deutsche Bank in 2010, the trial court

vacated the judgment in 2014, finding that Deutsche Bank failed to present evidence that

it held a valid promissory note or mortgage at the time the complaint was filed.        The

action was dismissed without prejudice; however, the trial court found that Deutsche

Bank premised its standing on its alleged ownership of a promissory note lacking any

indorsements, either in blank or specifically transferring the note to Deutsche Bank.   The
court further found that the mortgage, assigned to Deustche Bank, was invalid because it

was transferred under a power of attorney that had been revoked by operation of

bankruptcy law and cited In re Maplewood Poultry Co., 2 B.R. 550 (Bankr. D. Me.1980).

         {¶26} Deutsche Bank later refiled the action seeking an order of foreclosure based

on the note.     Deutsche Bank presented different evidence to the court in the instant

refiled action, specifically with regard to the promissory note allegedly being indorsed in

blank.    I believe the findings of the court in the prior action, however, create a genuine

issue of material fact as to whether Deutsche Bank has the right to enforce the note and

mortgage that would preclude summary judgment.
