[Cite as Wells Fargo Bank v. Schwartz, 2012-Ohio-917.]



                     Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 96641



                                WELLS FARGO BANK

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                      ABRAHAM SCHWARTZ, ET AL.
                                                          DEFENDANTS-APPELLANTS



                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-630727

        BEFORE: Stewart, J., Blackmon, A.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                         March 8, 2012
ATTORNEYS FOR APPELLANTS

William J. Stavole
Kimberlie L. Huff
Michael J. Zbiegien, Jr.
Taft, Stettinius & Hollister, LLP
200 Public Square, Suite 3500
Cleveland, OH 44114-2302

ATTORNEYS FOR APPELLEE

Richard A. Freshwater
Thompson Hine, LLP
127 Public Square
3900 Key Tower
Cleveland, OH 44114

Scott A. King
Terry W. Posey, Jr.
Thompson Hine, LLP
Austin Landing I
10050 Innovation Drive, Suite 400
Dayton, OH 45342

ATTORNEY FOR DEFENDANTS ABRAHAM SCHWARTZ AND SALLY
SCHWARTZ

William R. Strachan
Strachan, Miller, Olender & Roessler Co., L.P.A.
1940 Huntington Building
925 Euclid Avenue
Cleveland, OH 44115

ATTORNEY FOR DEFENDANT KEYBANK NATIONAL ASSOCIATION

Rebecca Kucera Fischer
Porter, Wright, Morris & Arthur, LLP
925 Euclid Avenue, Suite 1700
Cleveland, OH 44115
MELODY J. STEWART, J.:

       {¶1} This appeal concerns a priority dispute between two lienholders:

defendants-appellants Reuven Dessler and Robert Klein and plaintiff-appellee Wells

Fargo Bank, N.A. Both sides claimed superior liens on a foreclosed residential property

owned by defendants Abraham and Sally Schwartz. Wells Fargo indisputably had its

lien recorded first, but Dessler and Klein argued that Wells Fargo released its lien in a

certificate of satisfaction filed with the county recorder before they established their own

lien. Wells Fargo conceded that it released its lien on the record, but claimed to have

done so by inadvertently filing under the wrong instrument number. Both parties filed

cross-motions for summary judgment on questions of law. A magistrate found that

Dessler and Klein could not rely on a single digit discrepancy in the Wells Fargo

certificate of satisfaction of lien filed at the recorder’s office because the property

description in the certificate of satisfaction of lien listed the correct address and legal

description of the property that actually had the loan satisfied, thus placing Dessler and

Klein on constructive notice to make further investigation. The court approved the

magistrate’s findings. Dessler and Klein’s sole assignment of error contests the summary

judgment.

                                             I

       {¶2} The pertinent facts are undisputed. Consistent with Civ.R. 56, we review

the court’s summary judgment de novo to determine whether it erred as a matter of law by
finding that Wells Fargo’s certificate of satisfaction placed Dessler and Klein on

constructive notice that Wells Fargo had a preexisting lien.

       {¶3} In September 2002, the Schwartzes entered into two loan agreements with

Wells Fargo. The first was a promissory note and mortgage on real property located at

2500 Blossom Lane in Beachwood, Ohio (the “Blossom property”). This mortgage was

duly filed and assigned Instrument No. 200209201335 by the county recorder. The

second loan and mortgage was secured by real property located at 2449 Beachwood

Boulevard in Beachwood, Ohio (the “Beachwood property”).                This mortgage was

likewise duly filed and assigned Instrument No. 200209201337 by the county recorder.

       {¶4} In March 2003, the Schwartzes refinanced and paid off the loan secured by

the Beachwood property. Wells Fargo filed a certificate of satisfaction with the county

recorder stating that it “has received full payment and satisfaction” of the mortgage and

“does hereby cancel and discharge said mortgage[.]” The certificate of satisfaction went

on to state:

       Original Mortgagor: Abraham and Sally Schwartz

       Original Mortgagee: Wells Fargo Home Mortgage, Inc.

       Dated: 09/19/2002 Recorded: 09/20/2002 as Instrument                       No.:
       200209201335, in the County of Cuyahoga State of Ohio.

       {¶5} The certificate of satisfaction gave a legal description and address of the

Beachwood property. Nevertheless, there was no dispute that the instrument number

listed in the certificate of satisfaction matched that of the Blossom property.
       {¶6} In 2007, the Schwartzes executed a note and mortgage to Dessler and Klein

and secured it with a lien on the Blossom property. When another bank filed a judgment

lien on the Blossom property, Wells Fargo apparently discovered the error in the

certificate of satisfaction. It filed an “affidavit as to inadvertent satisfaction” and sought

“to revive the mortgage so that it is valid for all purposes.” It then filed this action in

foreclosure against the Schwartzes for their default on the promissory note.            In its

complaint, Wells Fargo alleged that “said mortgage was inadvertently released of record

on 3/21/03, in Instrument No. 200303210538, of said county Recorder’s records,” that the

mortgage had not been satisfied, and that it filed an affidavit of inadvertent satisfaction of

mortgage.

       {¶7} In support of its motion for summary judgment, Wells Fargo claimed that its

mortgage was superior to that of Dessler and Klein because it was filed first in time and

that the affidavit of inadvertent satisfaction cured any “confusion” caused by the

certificate of satisfaction. Dessler and Klein argued that they had the superior position

because Wells Fargo released its lien on the Blossom property, that they were unaware of

any senior liens on the property, and that they duly recorded their mortgage before Wells

Fargo attempted to revive its mortgage.

       {¶8} In a detailed decision, the magistrate first considered the import of the

certificate of satisfaction filed by Wells Fargo on the Blossom property. Acknowledging

that Ohio is a notice state, the magistrate found that instruments filed in the public

property record could provide constructive notice of claims or liens on property. The
magistrate found that “an instrument properly filed in the public record provides

constructive notice not merely of the presence of the instrument, but also of the contents

of the instruments.” (Emphasis sic.) The certificate of satisfaction listed the Schwartzes

as the original mortgagors and Wells Fargo as the original mortgagee, and the magistrate

found that a thorough search of the records would have led “[a]nyone searching the

alphabetical index” to both the Blossom and Beachwood properties.                  Hence, the

magistrate concluded that the presence in the public record of the mortgages on both

properties was, as a matter of law, something that put Dessler and Klein on notice that

there may be liens and that they should have more carefully reviewed the certificate of

satisfaction. The magistrate concluded that if Dessler and Klein more carefully reviewed

the certificate of satisfaction, they would have “readily noted that the legal description in

the Satisfaction instrument matched the legal description set forth in the Beachwood

Boulevard mortgage.” The magistrate also implied that Dessler and Klein had been

imprudent by searching only the recorder’s alphabetical index of properties and not the

tract index, which would have shown the legal description of the property searched.

Finally, the magistrate was unimpressed with Dessler and Klein’s reliance on a “title

report” that showed no encumbrances on the Blossom property. The magistrate found

that the title report was not a true title report but merely a “lien search” and did not search

back to the date of the original mortgage and, even if it was a “true title report,” “would

not be controlling as to the effect of the Certificate of Satisfaction, which is a question of

law for the court.” The court adopted the magistrate’s decision in its entirety.
                                                II

                                                A

       {¶9} Ohio has long adhered to the common law rule of priority for liens (since

codified by statute) of “first in time, first in right.” Elstner v. Fife, 32 Ohio St. 358, 373

(1877); R.C. 5301.23.     A mortgage like the one Wells Fargo held on the Blossom

property is, in equity, “a mere security for the performance of its condition of

defeasance.” Swartz’s Executors v. Leist, 13 Ohio St. 419, 423 (1862). It does not grant

legal title to the subject premises, nor does it afford a right of occupancy to the subject

premises. Id. at 424. A mortgage is thus nothing more than a lien on the premises, the

purpose of which is to put other lien holders on notice that there is a prior claim on the

premises. R.C. 5301.233; GMAC Mtge. Corp. v. McElroy, 5th Dist. No 2004-CA-00380,

2005-Ohio-2837, ¶ 16; R.C. 5301.01(B)(1)(b) (recording of a mortgage is “constructive

notice of the instrument to all persons, including without limitation, a subsequent

purchaser in good faith or any other subsequent holder of an interest in the property * *

*”).

                                                B

       {¶10} The magistrate noted, “there is a dearth of legal authority specifically

discussing the construction of a satisfaction or release of a mortgage lien.” This is likely

because a document manifesting the satisfaction, discharge, or release of a lien speaks for

itself. R.C. 5301.34 states in relevant part:

             A mortgage shall be discharged upon the record of the mortgage by
       the county recorder when there is presented to the county recorder a
       certificate executed by the mortgagee or the mortgagee’s assigns,
       acknowledged as provided in section 5301.01 of the Revised Code * * *.
       In addition to the discharge on the records by the recorder, such certificate
       shall be recorded in a book kept for that purpose by the recorder.
       {¶11} The effect of the Wells Fargo certificate of satisfaction, as recorded by the

Department of the County Recorder for the Blossom property, was to discharge the Wells

Fargo lien from the record. Discharging the lien from the record did not mean that the

mortgage itself had been discharged. Despite Wells Fargo’s error in filing the certificate

of satisfaction under the wrong property instrument number, the mortgage continued in

full force and effect — the Schwartzes continued paying the note on the Blossom

property even after the certificate of satisfaction had been filed. But from a notice

perspective, the certificate of satisfaction constituted some facial proof that Wells Fargo

no longer held a lien on the Blossom property, a fact verified by the language Wells Fargo

used in the affidavit seeking reinstatement of the mortgage in which it claimed the

mortgage satisfaction had been recorded through “mistake and inadvertence.”            The

mortgage was thus extinguished of record.

                                            III

       {¶12} Our conclusion that Wells Fargo released its mortgage on the record invokes

the following rule of law:

              If a subsequent legal mortgagee with no notice of a prior equitable
       mortgage should record first, there should be no question of the priority of
       the legal mortgage, but even if the prior equitable mortgagee records first,
       the subsequent legal mortgagee taking in good faith before that recordation
       ought to prevail, since the legal mortgagor [sic?] would have priority under
       the common law and because the recording statutes, excepting pure race
       statutes, are not designed to protect prior claimants who do not record.
       Thompson, Real Property, section 101.06(b), at 442 (1994).
       {¶13} However, the magistrate found that Dessler and Klein did not record their

mortgage on the Blossom property in good faith because the legal description, address,

and mortgage amount of the property contained in the Wells Fargo certificate of

satisfaction did not match the Blossom property. The magistrate concluded that these

discrepancies were enough to put Dessler and Klein on constructive notice to make

further inquiry to determine the disposition of the original mortgage.

       {¶14} A party having actual or constructive notice of a defect in a mortgage

release is bound by that notice. Tiller v. Hinton, 19 Ohio St.3d 66, 68, 482 N.E.2d 946

(1985). There is no question that Dessler and Klein lacked actual notice that Wells

Fargo had inadvertently released the mortgage, so the question is whether the undisputed

facts were sufficient to show that Dessler and Klein had constructive notice.           The

magistrate, citing Thames v. Asia’s Janitorial Svc., Inc., 81 Ohio App.3d 579, 588, 611

N.E.2d 948 (6th Dist. 1992), found that Dessler and Klein were charged under R.C.

5301.25(A) with tracing, “link by link,” their chain of title on the record and all relevant

information that would necessarily pass under their inspection. For the magistrate, this

meant that parties searching property records must search both the alphabetical (name)

index and the sectional (legal description) index for a given property in order to show due

diligence. From this, the magistrate concluded that had Dessler and Klein searched in

this manner, they would have discovered that the Blossom and Beachwood mortgages

were filed the same day, thus alerting them to the possibility of a problem.
       {¶15} The concepts of “constructive notice” and “due diligence” intersect in real

estate transactions.     “Constructive notice” has been defined as knowledge of

“circumstances which ought to have excited apprehension and inquiry in the mind of a

prudent and reasonable [person].” Varwig v. RR. Co., 54 Ohio St. 455, 468, 44 N.E. 92

(1896). “Due diligence” is “diligence of a character exercised by a fair and ordinarily

prudent person under the same or similar circumstances.” State v. Stelts, 2d Dist. No.

91-CA-31, 1991 WL 262685            (Dec. 16, 1991).      A person with actual notice of

circumstances sufficient to put a prudent person on inquiry as to a particular fact is

deemed to have constructive notice of the fact itself in all cases in which that person

might have learned the fact with a reasonable inquiry. In re Marrs’ Estate, 64 Ohio Law

Abs. 161, 111 N.E.2d 604 (2d Dist.1951); Buckeye State Hauling, Inc. v. Troy, 10th Dist.

No. 74AP-399, 1974 WL 184519 (Dec. 31, 1974).

       {¶16} The purpose of the recording statutes is to protect third parties who might

acquire a legal interest in the mortgaged property. Bloom v. Noggle (1854), 4 Ohio St.

45, 53-56. In addition, the recording statutes “put other lien holders on notice and * * *

prioritize the liens.” GMAC Mtge. Corp. v. McElroy, 5th Dist. No. 2004-CA-00380,

2005-Ohio-2837, ¶ 16. Proper due diligence in any transaction involving real estate

necessarily requires examination of the property record, at least insofar as the real estate

is being used as collateral for a debt and the creditor wishes to establish the superiority of

a lien against other existing or potential lienholders.
       {¶17} Dessler and Klein understood their obligation to conduct due diligence

before recording their mortgage against the property. They searched the property record

and discovered the certificate of satisfaction that Wells Fargo filed. But ending their

search at this point was not enough under the circumstances to constitute due diligence

because there were two very significant discrepancies that would have given any

reasonable person pause. First, the certificate of satisfaction plainly gave the address and

legal description of the Beachwood property, not the Blossom property. Second, the

amount of the mortgage stated in the certificate of satisfaction was $195,000 even though

the recorder’s office listed the amount of the mortgage on the Blossom property as

$973,000.   Either fact standing alone likely would have been sufficient to alert the

reasonably prudent person to undertake further investigation before extending a loan to

the Schwartzes; with both set of facts obvious on the record, they constituted a red flag

that simply could not be ignored.

       {¶18} Dessler and Klein argue that the mismatched property description was of no

consequence because R.C. 5310.46(C) states that the legal description is not an essential

component for release of a mortgage. While it is true that the omission of the legal

description from a document releasing an interest in real property “does not invalidate

that instrument,” id., one cannot ignore a legal description if it is included in the

document releasing an interest in real property.      To hold otherwise would turn the

concept of constructive notice on its head. Notice is implied from the facts — it matters

not how or why a person learned of those facts or even whether those facts were learned
through gratuitous means. Those facts, once presented to Dessler and Klein, were more

than enough to put them on notice that there might be an issue with the Wells Fargo

certificate of satisfaction and that further inquiry was necessary.

       {¶19} Our conclusion that a reasonably prudent person would have made a further

inquiry on the facts presented here seems unremarkable. The $2 million lien that Dessler

and Klein wished to record was not a trivial amount. The Schwartzes repeatedly used

their properties as collateral for loans. The property record lists multiple mortgages and

releases of mortgages on many of the Schwartzes’ properties.               It would not be

unthinkable that in these many transactions a mistake of the kind made here would be

manifest to a lender who diligently searched the property record.            To be sure, the

controversy here stemmed from Wells Fargo’s mistake in releasing a mortgage under the

wrong instrument number.        But that mistake was obvious enough under the facts

presented to put the reasonably prudent person on notice that something was amiss.

       {¶20} We hold that the court did not err by finding that Dessler and Klein were

charged with constructive notice of Wells Fargo’s mistake in releasing the lien on the

Blossom property. Because they had constructive notice of the mistake, Dessler and

Klein did not qualify as good faith lenders whose lien would be superior to that held by

Wells Fargo.

       {¶21} Judgment affirmed.

       It is ordered that appellee recover of appellants its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas 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.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
