[Cite as Wells Fargo Bank, N.A. v. Geiser, 2014-Ohio-3379.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




WELLS FARGO BANK, N.A.,                                :

        Plaintiff-Appellee,                            :      CASE NO. CA2013-06-103

                                                       :           OPINION
   - vs -                                                           8/4/2014
                                                       :

LARRY GEISER, et al.,                                  :

        Defendants-Appellants.                         :



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV 2011 11 3938



Lerner, Sampson & Rothfuss, LPA, Richard Mark Rothfuss II, Bill L. Purtell, 120 East Fourth
Street, Suite 800, Cincinnati, Ohio 45202, for plaintiff-appellee

Goering & Goering, LLC, Robert A. Goering, T. Martin Jennings, 220 West Third Street,
Cincinnati, Ohio 45202, for defendants-appellants, Larry & Jacqueline Geiser



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellants, Larry and Jacqueline Geiser, appeal from a decision of

the Butler County Court of Common pleas granting summary judgment and a decree in

foreclosure in favor of plaintiff-appellee, Wells Fargo Bank, N.A. (Wells Fargo). For the

reasons discussed below we affirm the decision of the trial court.

        {¶ 2} On August 31, 2006, appellants executed a promissory note in favor of Taylor,
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Bean & Whitaker Mortgage Corp., in the amount of $309,500 for the purchase of real

property commonly known as 8077 Eagle Ridge Drive in West Chester, Butler County, Ohio.

The note was secured by a mortgage that designated appellants as the borrowers, Taylor,

Bean & Whitaker Mortgage Corp. as the lender, and Mortgage Electronic Registration

Systems, Inc. (MERS) as the mortgagee. According to the mortgage documents, MERS was

acting as nominee for Taylor, Bean & Whitaker Mortgage Corp., as well as any of its

successors and assigns. Appellants both initialed and signed the mortgage document, and

the mortgage was subsequently recorded on September 5, 2006. On September 19, 2009,

MERS assigned the mortgage to Wells Fargo, and the assignment was recorded on

September 23, 2009.

        {¶ 3} On November 7, 2011, Wells Fargo filed a complaint seeking to foreclose on

the Eagle Ridge property. In its complaint, Wells Fargo alleged it was the holder of the

promissory note secured by the mortgage on the Eagle Ridge property and the note had

been defaulted on in the amount of $299,990.14, together with interest and costs at the rate

of seven percent per year from July 1, 2009. Wells Fargo further alleged it had a valid first

lien on the property and it sought to have the mortgage foreclosed, the property sold, and the

proceeds distributed.1 Attached to the complaint was the note, which had been indorsed in

blank by Erla Carter-Shaw, the Vice-President for Taylor, Bean & Whitaker Mortgage Corp.,

the mortgage, and the assignment of the mortgage from MERS to Wells Fargo.

        {¶ 4} Appellants filed an answer denying the allegations set forth in the complaint and

asserting two affirmative defenses: (1) Wells Fargo was not the real party in interest as

required by Civ.R. 17(A), and (2) Wells Fargo was precluded by the automatic bankruptcy


1. LCNB National Bank and Beckett Ridge Association-1 were also listed as defendants in the foreclosure
action. The trial court entered default judgment against Beckett Ridge Association-1 for its failure to file an
answer or otherwise appear in the action. LCNB National Bank appeared in the action and was found to have an
interest in the property, but its interest was junior in priority to Wells Fargo's interest. Neither LCNB National
Bank nor Beckett Ridge Association-1 are parties to the present appeal.
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stay set forth in 11 U.S.C. 362 from pursuing its foreclosure claim as appellants were

involved in a Chapter 11 bankruptcy proceeding.

        {¶ 5} On January 4, 2013, Wells Fargo filed a motion for summary judgment, arguing

that appellants were delinquent in making payments on the note and that $299,990.14 plus

interest was due and owed.2 Wells Fargo asserted it was the real party in interest as it was

the holder of the indorsed in blank promissory note and the holder of the mortgage by

assignment. It further argued that upon confirmation of appellants' bankruptcy plan in August

2010, the Eagle Ridge property was removed from the bankruptcy estate, the property re-

vested to appellants, and the automatic bankruptcy stay lifted. In support of its arguments,

Wells Fargo attached the affidavit of Nancy Manning, a Vice President of Loan

Documentation for Wells Fargo. In her affidavit, Manning averred that Wells Fargo was the

holder of the note and mortgage, appellants failed to make payments as required under the

terms of the note and mortgage, appellants' default had not been cured, the debt had been

accelerated pursuant to the terms of the loan, and the total due under the note was

$299,990.14, plus interest and costs. Attached to Manning's affidavit were copies of the

note, mortgage, and assignment of the mortgage.

        {¶ 6} Appellants filed a memorandum opposing summary judgment, arguing the

automatic bankruptcy stay had not been lifted and Wells Fargo failed to demonstrate it was

the real party in interest. With respect to their real party in interest argument, appellants

challenged the validity of the assignment of the mortgage. Essentially appellants contended

that the assignment was not valid as MERS sought to transfer the mortgage "as nominee for

Taylor, Bean & Whitaker, its successors and assigns" to Wells Fargo, when the mortgage



2. Wells Fargo's motion for summary judgment was not properly docketed below. However, upon a joint motion
by the parties to supplement the record, Wells Fargo's motion for summary judgment and the affidavit submitted
in support of said motion were included in the record on appeal. See Wells Fargo Bank, N.A. v. Geiser, 12th
Dist. Butler CA2013-06-103 (Nov. 15, 2013) (Entry Granting Joint Stipulation to Supplement the Record).
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document lists the lender as "Taylor, Bean & Whitaker Mortgage Corp." Appellants also

argued Wells Fargo was not the real party in interest as they received a letter, dated

November 7, 2012, from "Wells Fargo Home Mortgage" informing them that their mortgage

had been transferred to "Wells Fargo Bank, N.A." In support of their arguments, appellants

attached the docket sheet from their Chapter 11 bankruptcy case and the November 7, 2012

letter. Neither of these documents, however, were certified or incorporated by reference

through an affidavit.

       {¶ 7} On February 12, 2013, the trial court issued an order granting summary

judgment to Wells Fargo. The trial court determined, "Wells Fargo satisfied its burden of

establishing its prima facie entitlement to judgment as a matter of law by presenting the note,

mortgage, assignment, and evidence of the Geisers' default, as well as by addressing their

affirmative defenses." The trial court further determined appellants had not met their burden

of presenting evidence demonstrating a triable issue of fact existed to preclude judgment

from being entered. In so holding, the trial court found the documents attached to appellants'

memorandum in opposition were not admissible under Civ.R. 56(E) as the documents were

not properly attached or incorporated by reference through an affidavit.

       {¶ 8} On May 30, 2013, the trial court issued a final appealable order granting

summary judgment and a decree in foreclosure to Wells Fargo. Appellants timely appealed,

raising as their sole assignment of error the following:

       {¶ 9} [WELLS FARGO] IS NOT THE REAL PARTY IN INTEREST. THE TRIAL

COURT ERRED GRANTING [WELLS FARGO'S] MOTION FOR SUMMARY JUDGMENT

AND DECREE IN FORECLOSURE.

       {¶ 10} On appeal, appellants contend that the trial court erred by entering summary

judgment in favor of Wells Fargo as a genuine issue of material fact exists as to whether

Wells Fargo is the real party in interest. Appellants contend that Wells Fargo "has not
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received a proper assignment of the [m]ortgage and [n]ote. * * * [T]here is a question of fact

as it relates to the assignment from Taylor, Bean & Whitaker to Wells Fargo Bank, N.A."3

Wells Fargo, on the other hand, contends that summary judgment was properly rendered as

no genuine issues of material fact remain regarding its entitlement to foreclose on the Eagle

Ridge property and collect the sums due under the terms of the promissory note.

        {¶ 11} This court's review of a trial court's ruling on a motion for summary judgment is

de novo. Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio App.3d 393, 2010-Ohio-

1945, ¶ 14 (12th Dist.). "De novo review means that this court uses the same standard that

the trial court should have used, and we examine the evidence to determine whether as a

matter of law no genuine issues exist for trial." Morris v. Dobbins Nursing Home, 12th Dist.

Clermont No. CA2010-12-102, 2011-Ohio-3014, ¶ 14, citing Brewer v. Cleveland Bd. of Edn.,

122 Ohio App.3d 378, 383 (8th Dist.1997). Summary judgment is appropriate when there

are no genuine issues of material fact to be litigated, the moving party is entitled to judgment

as a matter of law, and reasonable minds can come to only one conclusion, and that

conclusion is adverse to the nonmoving party.                     Civ.R. 56(C); Williams v. McFarland

Properties, L.L.C., 177 Ohio App.3d 490, 2008-Ohio-3594, ¶ 7 (12th Dist.).

        {¶ 12} To prevail on a motion for summary judgment, the moving party must be able to

point to evidentiary materials that show there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio

St.3d 280, 293 (1996). "If the moving party fails to satisfy its initial burden, the motion for

summary judgment must be denied." Id. However, if the moving party meets its burden,


3. Appellants also argue, for the first time on appeal, that "[t]he original [m]ortgage holder was out of business
before the first assignment was made." Presumably appellants are arguing that at the time the note and/or
mortgage was transferred to Wells Fargo, the entity Taylor, Bean and Whitaker Mortgage Corp. was no longer in
existence. "It is axiomatic that a party cannot raise new issues or legal theories for the first time on appeal and
failure to raise an issue before the trial court results in waiver of that issue for appellate purposes." Dudley v.
Dudley, 12th Dist. Butler No. CA2008-07-165, 2009-Ohio-1166, ¶ 18. As appellants did not present this
argument to the trial court, we need not consider the issue on appeal.
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then the burden shifts to the nonmoving party to present evidence demonstrating that some

issue of material fact remains to be resolved. Id. "All evidence submitted in connection with

a motion for summary judgment must be construed most strongly in favor of the party against

whom the motion is made." Dobbins Nursing Home at ¶ 15, citing Morris v. First Natl. Bank &

Trust Co., 21 Ohio St.2d 25, 28 (1970).

        {¶ 13} Appellants argue that Wells Fargo is not the real party in interest. Civ.R. 17(A)

provides that "[e]very action shall be prosecuted in the name of the real party in interest." A

real party in interest, therefore, "is one who can discharge the claim upon which the suit is

brought * * * [or] is the party who, by substantive law, possesses the right to be enforced."

BAC Home Loans Servicing, L.P. v. Hall, 12th Dist. Warren No. CA2009-10-135, 2010-Ohio-

3472, ¶ 14. "In a foreclosure action, the real party in interest is the entity that is the current

holder of the note and mortgage." Bank of New York Mellon v. Blouse, 12th Dist. Fayette No.

CA2013-02-002, 2013-Ohio-4537, ¶ 10, citing Deutsche Bank Natl. Trust Co. v. Sexton, 12th

Dist. Butler CA2009-11-288, 2010-Ohio-4802, ¶ 9.4

        {¶ 14} A person who is entitled to enforce an instrument includes "[t]he holder of the

instrument." R.C. 1303.31(A)(1). A holder includes a person who is in possession of an
                                                    5
instrument payable to bearer. R.C. 1301.01(T)(1)(a). "When an instrument is indorsed in

blank, the instrument becomes payable to bearer and may be negotiated by transfer of

possession alone." R.C. 1303.25(B).




4. Appellants do not challenge Wells Fargo's standing to bring the foreclosure suit. As discussed by the Ohio
Supreme Court in Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, the real-
party-in-interest rule and standing are two separate concepts. "[T]he real-party-in-interest rule concerns only
proper party joinder. Civ.R. 17(A) does not address standing." Id. at ¶ 33. As appellants have limited their
argument to the real party in interest concerns, we will not address the issue of standing.

5. R.C. 1301.01 was repealed by Am.H.B. No. 9, 2011 Ohio Laws File 9, effective June 29, 2011. The act
amended the provisions of R.C. 1301.01 and renumbered that section so that it now appears at R.C. 1301.201.
Because R.C. 1301.201 only applies to transactions entered on or after June 29, 2011, we apply R.C. 1301.01 to
this appeal.
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      {¶ 15} In the present case, Wells Fargo demonstrated it was the holder of the note

and mortgage. Wells Fargo introduced into evidence a copy of the note, which had been

indorsed in blank by Carter-Shaw, the Vice-President for Taylor, Bean & Whitaker Mortgage

Corp., and copies of the mortgage and the assignment of the mortgage from MERS to Wells

Fargo. These documents, combined with Manning's averment that Wells Fargo is the holder

of the note and mortgage, were sufficient to demonstrate that Wells Fargo was the real party

in interest entitled to enforce the note and foreclose on the mortgage. Appellants failed to

present any admissible evidence raising a genuine issue of fact regarding Wells Fargo's right

to enforce the note and mortgage.

      {¶ 16} Additionally, we find no merit to appellants' argument that the assignment of the

mortgage from MERS to Wells Fargo was invalid. As an initial matter, we note that

appellants lack standing to challenge the validity of the assignment from MERS to Wells

Fargo. See Bank of New York Mellon v. Putman, 12th Dist. Butler No. CA2012-12-267,

2014-Ohio-1796, ¶ 24 (finding mortgagor lacked standing to challenge an assignment of a

mortgage between MERS and Bank of New York Mellon); see also U.S. Bank, N.A. v.

Lawson, 5th Dist. Delaware No. 13CAE030021, 2014-Ohio-463, ¶ 39-40; Bank of New York

Mellon Trust, Co. v. Unger, 8th Dist. Cuyahoga No. 97315, 2012-Ohio-1950, ¶ 35. However,

even if appellants could challenge the assignment, Ohio courts have "consistently held that

MERS has authority to assign a mortgage when it is designated as both a nominee and

mortgagee." Putman at ¶ 25, citing BAC Home Loans Servicing L.P. v. Haas, 3d Dist. Marion

No. 9-13-40, 2014-Ohio-438, ¶ 28. By signing the mortgage, appellants contractually agreed

that MERS possessed the power to transfer rights in the Eagle Ridge property. From

Manning's averments and the attached assignment of the mortgage, Wells Fargo

demonstrated it was the holder of the mortgage by assignment from MERS.

      {¶ 17} Accordingly, having found that Wells Fargo demonstrated that it was the holder
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of the note and mortgage, we find that it was the real party in interest. We further find that

the trial court did not err in granting summary judgment to Wells Fargo as the documents

attached to its motion for summary judgment demonstrated it was entitled to judgment as a

matter of law. Appellants' sole assignment of error is, therefore, overruled.

       {¶ 18} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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