[Cite as Wells Fargo Bank, N.A. v. Roehrenbeck, 2016-Ohio-1273.]




                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


WELLS FARGO BANK, NA                                     JUDGES:
                                                         Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                               Hon. John W. Wise, J.
                                                         Hon. Craig R. Baldwin, J.
-vs-
                                                         Case No. 15-CA-61
MARY K. ROEHRENBECK

        Defendant-Appellant                              OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Licking County Common
                                                     Pleas, Court, Case No. 14-CV-0191


JUDGMENT:                                            Affirmed

DATE OF JUDGMENT ENTRY:                              March 23, 2016


APPEARANCES:


For Plaintiff-Appellee                               For Defendant-Appellant


SCOTT A. KING                                        MARY ROEHRENBECK, PRO SE
TERRY W. POSEY, JR.                                  264 Isaac Tharp St.
Thompson Hine LLP                                    Pataskala, Ohio 43062
10050 Innovation Drive
Suite 400
Miamisburg, Ohio 45342
Licking County, Case No. 15-CA-61                                                     2

Hoffman, P.J.


      {¶1}   Defendant-appellant Mary K. Roehrenbeck appeals the August 5, 2015

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 Bank, N.A. (“Wells Fargo”), and issued a decree of foreclosure.

                         STATEMENT OF THE FACTS AND CASE

      {¶2}   On October 24, 2006, Appellant executed a promissory note in favor of

Beazer Mortgage Corporation in the amount of $217,183.00, for real property located at

264 Isaac Tharp Street, Pataskala, Licking County, Ohio. To secure payment of the Note,

Appellant executed an open-ended mortgage against the Property in favor of Mortgage

Electronic Registration Systems, Inc. (“MERS”), as nominee for Beazer, its successors

and assigns. The Mortgage contained a legal description of the Property and indicated

the lot number as “89”. Beazer subsequently indorsed the Note to American Brokers

Conduit, which indorsed it to Appellee, which indorsed it in blank. MERS executed a

Notice of Assignment of Mortgage to Appellee on March 7, 2012.

      {¶3}   Appellant defaulted under the terms of the Note and Mortgage and Appellee

accelerated the debt. On February 28, 2014, Appellee filed its complaint, seeking to

recover the balance due under the Note and to foreclosure the Mortgage. Appellant filed

an answer on May 23, 2014.

      {¶4}   On July 9, 2014, Appellant filed Defendant’s Notice to the Court Requesting

Plaintiff to Produce Documents and Admissions. The filing bore a certificate of service,

however, the certificate did not reflect whether Appellant had provided Appellee with an

electronic copy of the requests.    Upon leave of court, Appellee filed an amended
Licking County, Case No. 15-CA-61                                                         3


complaint on October 16, 2014. The amended complaint added a reformation claim,

seeking to reform the description of the Property from lot number 89 to lot number 79.

       {¶5}   Appellant filed an answer to the amended complaint on November 17, 2014,

and a motion to dismiss the amended complaint on January 13, 2015. The trial court

denied Appellant’s motion to dismiss via Judgment Entry filed February 17, 2015.

       {¶6}   Appellee filed a motion for summary judgment on May 21, 2015, as well as

a supplemental motion on July 9, 2015. Appellant filed a memorandum in opposition on

June 22, 2015. In her memorandum in opposition, Appellant argued Appellee failed to

timely respond to her request for admissions.        Appellant further asserted because

Appellee’s affidavit in support of summary judgment authenticated the Mortgage as a

“true and accurate” copy, the claim for reformation should fail.         Finally, Appellant

maintained Appellee “admitted that they received full payment for the Note, multiple

times” due to Appellee’s failure to respond to her request for admissions.

       {¶7}   Via Memorandum of Decision issued July 14, 2015, the trial court granted

summary judgment in favor of Appellee. The trial court issued a Judgment Entry and

Decree in Foreclosure on August 5, 2015. The trial court found the Note was secured by

the Mortgage as a first lien on the Property. The trial court further found a mutual mistake

in the Mortgage which identified the Property as Lot 89 instead of Lot 79, and reformed

the Mortgage to reflect the correct description.

       {¶8}   It is from the August 5, 2015 entry Appellant appeals, raising the following

assignments of error:
Licking County, Case No. 15-CA-61                                                       4


      {¶9}   “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT

TO PLAINTIFF, WELLS FARGO, BECAUSE GENUINE ISSUES OF MATERIAL FACT

EXIST.

      {¶10} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT

TO PLAINTIFF, WELLS FARGO, BECAUSE PLAINTIFF/APPELLEE DID NOT PROVE

STANDING.”

                                              I, II

      {¶11} In her first assignment of error, Appellant maintains the trial court erred in

granting summary judgment in favor of Wells Fargo as genuine issues of material fact

exist. In her second assignment of error, Appellant contends the trial court erred in

granting summary judgment as Wells Fargo failed to prove standing. We disagree with

both assertions.

      {¶12} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996–Ohio–211:

             Civ.R. 56(C) provides that before summary judgment may be

      granted, it must be determined that (1) no genuine issue as to any material

      fact remains to be litigated, (2) the moving party is entitled to judgment as

      a matter of law, and (3) it appears from the evidence that reasonable minds

      can come to but one conclusion, and viewing such evidence most strongly

      in favor of the nonmoving party, that conclusion is adverse to the party

      against whom the motion for summary judgment is made. State ex. rel.

      Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
Licking County, Case No. 15-CA-61                                                            5

       citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d

       466, 472, 364 N.E.2d 267, 274.

       {¶13} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (1987).

       {¶14} Appellant submits the trial court erred in granting summary judgment to

Wells Fargo as a genuine issue of material fact exists as to standing. Appellant explains,

by failing to respond to her request for admissions, Wells Fargo “demonstrated that [it]

agreed with the claims” and by its “own admissions” acknowledged it did not have

standing. Brief of Appellant at 5. Appellant presented these facts, which she contends

were deemed admitted due to the failure of Wells Fargo to respond to her request for

admissions, throughout the course of the proceedings and, in particular, in her

memorandum contra Wells Fargo’s motion for summary judgment. Wells Fargo counters

Appellant failed to electronically serve it with a copy of the request for admissions, and as

a consequence of such failure, no responses were due to Appellant. Wells Fargo adds

because Appellant’s request for admissions were not properly filed, the facts deemed

admitted by its failure to respond were not properly before the trial court.

       {¶15} Assuming, arguendo, Appellant electronically served Wells Fargo with a

copy of the request for admissions and the admissions were deemed admitted due to

Wells Fargo’s failure to respond, we, nonetheless, find the trial court did not err in granting

summary judgment to Wells Fargo.

       {¶16} “In no sense does [Civil] Rule 36 supersede [Civil] Rule 56. The basic rules,

to which we are already accustomed, determining when summary judgment lies, remain
Licking County, Case No. 15-CA-61                                                            6


controlling. Civil Rule 56 specifies the kind and method of support required to support

summary judgment.” State Farm v. Valentine (1971), 29 Ohio App.2d 174, 182, 279

N.E.2d 630. Appellant was required to verify Appellee’s alleged failure to respond to her

discovery requests via affidavit if she intended to use the alleged admissions as evidence

to refute Wells Fargo’s motion for summary judgment. Wells Fargo’s alleged failure to

respond to her request for admissions was not a substitute for Appellant having to submit

evidentiary material pursuant to Civ. R. 56 in support of memorandum contra. See,

Zimmerman v. Fischer (Oct. 14, 1987), Hamilton App. No. C-860624. Having failed to

bring the admissions to the trial court’s attention through an affidavit the trial court had no

obligation to consider the purportedly unanswered request for admissions as evidence at

the summary judgment stage.

       {¶17} Furthermore, we find Wells Fargo had standing to bring the instant action.

Appellant claims Wells Fargo did not have standing because it did not suffer any injury

from Appellant’s failure to make payments under the Note and Mortgage due to the

securitization of the Note and, as well as PMI and FHA Housing and Urban Development

insurance on the Note and Mortgage.           Neither securitization nor the availability of

insurance can extinguish a borrower’s obligations under a note and mortgage. See,

Dauenhauer v. Bank of N.Y. Mellon (6th Cir. 2014), 562 F. App. 473, 480; Henkels v. JP

Morgan Chase (D. Ariz. June 14, 2011), No. CV-11-0299-HPH-JAT, 2011 WL 2357874.

       {¶18} Appellant’s first and second assignments of error are overruled.
Licking County, Case No. 15-CA-61                                                   7


      {¶19} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur
