[Cite as Flagstar Bank, F.S.B. v. Richison, 2012-Ohio-3198.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               UNION COUNTY




FLAGSTAR BANK, FSB,

        PLAINTIFF-APPELLEE,                                    CASE NO. 14-12-01

        v.

ERIC RICHISON, ET AL.,                                         OPINION

        DEFENDANTS-APPELLANTS.




                  Appeal from Union County Common Pleas Court
                           Trial Court No. 2011-CV-0043

                                      Judgment Affirmed

                              Date of Decision: July 16, 2012




APPEARANCES:

        Brian K. Duncan for Appellants

        Scott A. King and Terry W. Posey, Jr. for Appellee
Case No. 14-12-01



ROGERS, J.

       {¶1} Defendants-Appellants, Eric and April Richison (“the Richisons”),

appeal the judgment of the Court of Common Pleas of Union County granting

summary judgment in favor of Plaintiff-Appellee, Flagstar Bank, F.S.B.

(“Flagstar”), in Flagstar’s foreclosure action against the Richisons. On appeal, the

Richisons contend that the trial court erred in granting summary judgment in favor

of Flagstar because there were genuine issues of material fact and Flagstar was not

entitled to judgment as a matter of law. Based on the following, we affirm the

judgment of the trial court.

       {¶2} On September 19, 2007, the Richisons executed a promissory note

(“the Note”) with Nation One Mortgage Services, Ltd. (“Nation One”) for a loan

in the amount of $214,200.00. The last page of the Note bears an endorsement

from Nation One to Flagstar reading, “[p]ay to the order of Flagstar Bank, FSB

without recourse.” (Docket No. 2, Ex. A, p. 3). The Note was secured by a

mortgage (“Mortgage”) encumbering property located at 383 Triple Crown Way,

Marysville, Ohio (“Property”).

       {¶3} On February 4, 2011, Flagstar filed a complaint for foreclosure

alleging that it was in possession of and the holder of the Note; that it was the

holder of the Mortgage; that the Richisons were in default of payment on the Note

and Mortgage securing the same; and, that a balance of $209,583.06, plus interest

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remained outstanding on the Note. Attached to the complaint was a copy of the

Note, Mortgage, and a mortgage assignment. Flagstar requested judgment against

the Richisons for the outstanding balance on the Note, plus interest and other

costs, and that the trial court order foreclosure and sale of the Property.

        {¶4} On April 1, 2011, the Richisons filed their answer.

        {¶5} On October 5, 2011, Flagstar filed a motion for summary judgment

arguing that there were no genuine issues of material fact and that it was entitled

to judgment as a matter of law. In support of its motion for summary judgment,

Flagstar attached a copy of the Note, Mortgage, and mortgage assignment. In

addition to the foregoing documents, Flagstar filed an affidavit of its employee

Barbara Dore (“Dore”). In her affidavit, Dore attested that she is a foreclosure

analyst with Flagstar; that Flagstar is and was in possession of the Note prior to

filing the complaint; that the copies of the Note and Mortgage attached to the

complaint are true and accurate copies of the original instruments; that the

Richisons have not made payments on the Note since September 1, 2009 and,

consequently, are in default of payment on the Note and Mortgage securing the

same; and, that a balance of $209,583.06, plus interest remains outstanding on the

Note.

        {¶6} On November 16, 2011, the Richisons filed a memorandum in

opposition to Flagstar’s motion for summary judgment. The Richisons argued that

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there were genuine issues of material fact as to whether Flagstar is a holder in due

course of the Note and whether the assumption of risk doctrine applies in a

foreclosure action.

       {¶7} On December 1, 2011, Flagstar filed a reply to the Richisons’

memorandum in opposition. Flagstar argued that status as holder in due course is

irrelevant because it is entitled to enforce the Note due to its status as a holder.

Flagstar also argued that the assumption of risk doctrine has no application in a

foreclosure action.

       {¶8} On December 9, 2011, the trial court granted summary judgment in

favor of Flagstar.

       {¶9} It is from this judgment the Richisons appeal, presenting the following

assignment of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       GRANTING PLAINTIFF’S MOTION FOR SUMMARY
       JUDGMENT BECAUSE THERE WERE GENUINE ISSUES
       OF FACT AND PLAINTIFF WAS NOT ENTITLED TO
       JUDGMENT AS A MATTER OF LAW.

       {¶10} In their sole assignment of error, the Richisons contend that the trial

court erred in granting summary judgment in favor of Flagstar. The Richisons’

contention is two-fold. First, the Richisons contend that there is a genuine issue of

material fact as to whether Flagstar is a holder in due course.         Second, the

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Richisons contend that there is a genuine issue of material fact as to whether the

assumption of risk doctrine applies in a foreclosure action. We disagree with both

contentions.

         {¶11} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.

1999).    Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination.      Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d

217, 222 (1994). Summary judgment is appropriate when, looking at the evidence

as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving

party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this

analysis the court must determine “that 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, [the nonmoving] party being entitled to have the

evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”

Id. If any doubts exist, the issue must be resolved in favor of the nonmoving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).



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       {¶12} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact on a material element of the nonmoving party’s claim. Dresher v.

Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the moving party is not required

to produce any affirmative evidence, but must identify those portions of the record

which affirmatively support his or her argument. Id. The nonmoving party must

then rebut with specific facts showing the existence of a genuine triable issue; he

or she may not rest on the mere allegations or denials of his or her pleadings. Id.

at 293; Civ.R. 56(E).

                                Holder In Due Course

       {¶13} On appeal, the Richisons contend that there is a genuine issue of

material fact as to whether Flagstar is a holder in due course of the Note. We

disagree, finding that Flagstar’s status as a holder in due course of the Note is

irrelevant to the resolution of this case.

       {¶14} Generally, a plaintiff producing an instrument is entitled to payment

if the plaintiff proves that he or she is entitled to enforce the instrument pursuant

to R.C. 1303.31. However, if the defendant proves a defense or claim enumerated

in R.C. 1303.35, then the plaintiff’s right to payment becomes subject to the

asserted defense or claim, except to the extent that the plaintiff proves he or she



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has rights of a holder in due course that are not subject to the asserted defense or

claim.

         {¶15} Here, there is no dispute as to whether Flagstar is entitled to enforce

the Note under R.C. 1303.31. One is entitled to enforce an instrument, such as the

Note, if they are a holder of that instrument. R.C. 1303.31(A)(1). A “‘[h]older’

with respect to a negotiable instrument means either of the following: (a) If the

instrument is payable to the 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.”                        R.C. 1301.01(T)(1)(a), (b). 1

Review of the record reveals that Flagstar is in possession of the Note and that the

Note is payable to Flagstar. Accordingly, Flagstar is a holder of the Note and

therefore is entitled to enforce the same.

         {¶16} Having determined that Flagstar is a holder, we must determine

whether the Richisons have proven a defense or claim enumerated in R.C.

1303.35. On appeal, the Richisons do allege several defenses, but present no

evidence or argument proving that any of the defenses exist.                               Because the

Richisons failed to prove any of the defenses, Flagstar is not required to prove that

it is a holder in due course in order to recover. See Arcanum Natl. Bank v.
1
 R.C. 1301.01 was repealed by 2011 Am.H.B. No. 9, effective June 29, 2011. That act amended the
provisions of R.C. 1301.01 and renumbered that section so that it now appears at R.C. 1301.201. As R.C.
1301.201 applies only to transactions entered on or after June 29, 2011, we apply R.C. 1301.01 to this
appeal. We note that the R.C. 1301.201(B)(21)(a) definition of “holder” is substantially similar to the R.C.
1301.01(T)(1)(a) and (b) definition of “holder.”

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Hessler, 69 Ohio St.2d 549, 551 (1982) (whether one is a holder in due course is

an issue which does not arise unless it is shown a defense exists). Accordingly,

the Richisons’ contention concerning Flagstar’s status as a holder in due course of

the Note is irrelevant to the resolution of this case.

                                  Assumption of Risk

       {¶17} Next, the Richisons contend that there is a genuine issue of material

fact as to whether the assumption of risk doctrine applies in a foreclosure action.

We disagree.

       {¶18} Determining whether the assumption of risk doctrine applies in a

foreclosure action is an issue of law. The Richisons fail to cite any authority

applying the assumption of risk doctrine in a foreclosure action, and a review of

Ohio case law yields no support for this assertion. Because the Richisons fail to

support their argument with authority as required by App.R. 16(A)(7), we decline

to address it. App.R. 12(A)(2). We summarily note, however, that the assumption

of the risk doctrine is primarily, if not exclusively, a defense against a claim of

negligence. Therefore, we find that without authority in support of their argument,

the assumption of the risk doctrine is not a defense in a foreclosure action.

       {¶19} Accordingly, we overrule the Richisons’ sole assignment of error.




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       {¶20} Having found no error prejudicial to the Richisons herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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