[Cite as JP Morgan Chase Bank v. Stevens, 2017-Ohio-7165.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                     No. 104835



                          JP MORGAN CHASE BANK

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                              MICHAEL M. STEVENS
                                                         DEFENDANT-APPELLANT




                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                  Case No. CV-13-803622

        BEFORE: McCormack, P.J., Blackmon, J., and Jones, J.

        RELEASED AND JOURNALIZED:                        August 10, 2017
FOR APPELLANT

Michael M. Stevens, pro se
1935 Coventry Road
Cleveland Heights, OH 44118


ATTORNEYS FOR APPELLEE

Ashlyn Heider
Matthew Murtland
Shapiro, Van Ess, Phillips and Barragate
4805 Montgomery Road, Suite 320
Norwood, OH 45212

Phillip C. Barragate
Shapiro, Van Ess, Phillips and Barragate
1100 Superior Ave., Suite 950
Cleveland, OH 44114

Joseph T. Chapman
Collection Enforcement Section
150 E. Gay Street, 21st Floor
Columbus, OH 43215

Daniel C. Gibson
Nelson M. Reid
Bricker & Eckler L.L.P.
100 South Third Street
Columbus, OH 43215

Marlon A. Primes
U.S. Attorney’s Office
U.S. Courthouse, #400
801 W. Superior Ave.
Cleveland, OH 44113
TIM McCORMACK, P.J.:

       {¶1}          Defendant-appellant Michael M. Stevens appeals from a judgment in

the Cuyahoga County Court of Common Pleas granting summary judgment in favor of

plaintiff-appellee J.P. Morgan Chase Bank, N.A. (“Chase”) regarding foreclosure of the

property located in Cleveland Heights, Ohio. For the reasons that follow, we affirm.

                         Procedural History and Substantive Facts

       {¶2} On March 15, 2002, Stevens executed a promissory note in the original

principal amount of $110,000 in favor of Washington Mutual Bank (“WaMu”). The

note was secured by a mortgage against the Cleveland Heights property. The mortgage

was executed in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”) as

nominee for WaMu and WaMu’s successors and assigns. Thereafter, MERS assigned

the mortgage to Chase.

       {¶3} On March 25, 2013, Chase filed a complaint in foreclosure against Stevens,

seeking judgment on the note and foreclosure of the mortgage.      Chase attached copies of

the note, the mortgage, and the assignment of the note and mortgage.      Chase alleged that

it is entitled to enforce the note, the mortgage is a valid first lien upon the premises, and

Stevens was in default. According to Chase, Stevens failed to make a payment that was

due in September 2009 and has not subsequently made payments to bring the loan current.

 Chase alleged that the total amount due and owing is $98,472.41, plus interest, from

August 2009. Stevens filed his answer to the complaint on May 28, 2013.
       {¶4} On January 6, 2014, Chase filed a motion for summary judgment and

motion for default judgment.     Chase attached the affidavit of a Chase vice president,

Samuel B. Mueller, in support of its summary judgment, along with a copy of the note,

the mortgage, and an assignment of the note and mortgage to Chase. Mueller attests that

the documents attached to the motion are true and correct copies of the note and mortgage

and that Chase is in possession of the original note and was in possession of the note prior

to commencement of the foreclosure action. Stevens filed an opposition to Chase’s

motion for summary judgment, attaching the affidavits of proffered experts, William J.

Paatalo and James Madison Kelley.          In his response, Stevens challenges Chase’s

standing by asserting that the note is not the original document and the assignment from

MERS to Chase is invalid.

       {¶5} On January 29, 2016, the magistrate issued a decision with findings of fact

and conclusions of law, determining that there is no genuine issue of material fact and

Chase is entitled to judgment as a matter of law. Specifically, in addressing Stevens’s

claim that the note is not authentic, the magistrate concluded:

       Pursuant to R.C. 1303.36(A), in an action with respect to an instrument
       such as a note and mortgage, a litigant must specifically deny in his
       pleadings “the authenticity of, and authority to make, each signature” in
       order to avoid the authenticity of that signature being “admitted.” * * *
       Defendant Stevens does not dispute that he executed the note and does not
       in his Answer specifically deny that the signature on the note is his. (Rather,
       he expresses a belief or allegation that the note “bears a computer forgery of
       Stevens’s signature.”) Such a defense, short of a denial, is not sufficient to
       defeat the admission set forth in the civil rules. Further, the argument that
       Chase is not in possession of the original note is expressly defeated by the
       affidavit of Samuel B. Mueller, who, in attaching a true and accurate copy
       of the original, testified on personal knowledge that Chase is “in possession
      of the original note.” * * * The note is endorsed in blank by the original
      lender. Thus, it is payable to bearer * * *.

      {¶6} Additionally, with respect to Stevens’s challenge of the validity of the

assignment, the magistrate found that Stevens “ignore[d] the fact that it is the mortgage

assignment that transfers the rights of enforcement of the note and mortgage to Chase.”

The magistrate stated that the evidence of the transfer of a note, including through an

assignment of a mortgage, “that expresses an intent to transfer the right to enforce the

note as well, will suffice to establish holder status in both.”      Thus, the magistrate

concluded that the assignment of the note and mortgage attached to Chase’s complaint

“clearly indicates that the mortgage is being assigned to Chase ‘together with the

promissory note secured thereby and referred to therein * * *.’”

      {¶7} Finally, the magistrate determined that Stevens had no standing to challenge

the assignment, because he was not a party to it and his interests are not affected by it,

and the unrebutted evidence of the recorded assignment “clearly presents prima facie

evidence of the holder status of the mortgage.”

      {¶8} Stevens filed objections to the magistrate’s decision, and Chase responded

to Stevens’s objections. On July 15, 2016, the trial court overruled the objections and

adopted the magistrate’s decision. In adopting the magistrate’s decision, the trial court

specifically addressed Stevens’s allegation that the note includes a “computer forgery,”

and the court noted that Stevens “fails to deny that he signed the note and that the

signature on the note is his.” The court also addressed Stevens’s purported experts who

attest to the alleged forgery. In so doing, the court determined that the proffered experts
were not qualified as experts under Evid.R. 702-705.       The court also found the “factual

evidence” of two websites submitted in support of Paatalo’s legal conclusion insufficient.

       {¶9} Regarding Stevens’s other proffered expert, James Kelley, the court stated:

       Dr. Kelley attests that the attachments to plaintiff’s complaint and motion

       for summary judgment are not the wet ink copy of the note, mortgage, and

       mortgage assignment. He avers that the attachment is not the original note

       but a facsimile thereof. It is customary that the court filings of the loan

       documents are not the wet ink copies but duplicates of the originals

       pursuant to Evid.R. 1003. Plaintiff’s affiant, Samuel B. Mueller, notably

       attests that his review focused on “Chase’s records relating to the

       borrower’s loan, including copies of the note and the mortgage.” (Aff. ¶ 5).

        However, Mr. Mueller additionally attests that the exhibits attached to his

       affidavit are true and correct copies of the note and mortgage (Aff. ¶ 5) and

       that plaintiff * * * was in possession of the original note (Aff. ¶ 6).

The court stated that an affiant is not required to aver that he compared the mortgage loan

documents that are attached to his affidavit to the original documents, nor is he required

to explain the basis for his personal knowledge “where such knowledge can be reasonably

inferred based on the affiant’s position and other facts contained in the affidavit.”   The

court concluded that Stevens’s proffered computer expert presented no facts that

“establish or infer fraud in the execution of the original loan documents.”
       {¶10} Finally, the trial court adopted the magistrate’s conclusion that Stevens has

no standing to challenge the assignment, stating that the current law in this district holds

that a defendant who is not a party to an assignment cannot challenge the assignment.

Thus, the trial court found, Stevens cannot demonstrate any injury.

       {¶11} Stevens now appeals, claiming the trial court erred in granting summary

judgment in favor of Chase.

                                    Summary Judgment

       {¶12} Summary judgment is appropriate when: (1) there is no genuine issue of

material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) after

construing the evidence most favorably for the party against whom the motion is made,

reasonable minds can reach only a conclusion that is adverse to the nonmoving party.

Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267

(1977).

       {¶13} In a motion for summary judgment, the moving party carries an initial

burden of setting forth specific facts that demonstrate his or her entitlement to summary

judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). Once

a moving party satisfies its burden under Civ.R. 56(C), the nonmoving party may not rest

upon the mere allegations or denials of the moving party’s pleadings; rather, it has a

reciprocal burden of setting forth specific facts demonstrating that there is a genuine

triable issue. Id.; State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449, 663
N.E.2d 639 (1996). Summary judgment is appropriate if the nonmoving party fails to

meet this burden.   Dresher at 293.

        {¶14} A motion for summary judgment in a foreclosure action must be supported

by evidentiary quality materials establishing that: (1) the plaintiff is the holder of the note

and mortgage or is a party entitled to enforce the instrument; (2) if the plaintiff bank is

not the original mortgagee, the chain of assignments and transfers; (3) that the mortgagor

is in default; (4) that all conditions precedent have been met; and (5) the amount of

principal and interest due. See, e.g., Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist.

Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 17; Bank of Am., N.A. v. Sweeney, 8th Dist.

Cuyahoga No. 100154, 2014-Ohio-1241, ¶ 8.

        {¶15} We review the trial court’s decision on a motion for summary judgment de

novo.    Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
                                     Law and Analysis

       {¶16} Within his one assignment of error, Stevens advances several arguments.

Stevens contends that Chase failed to demonstrate it has a valid assignment of the note

and mortgage and therefore Chase failed to show it is a holder of the note “bearing the

original unaltered wet ink signature of [the] appellant.” Stevens also takes issue with

various discovery matters, arguing the court erred in not allowing him to depose Chase

regarding Mueller’s affidavit, in excluding the affidavit of his proffered expert, William

J. Paatalo, and in not allowing the defense offered by purported expert James Madison

Kelley. Finally, Stevens claims that Mueller’s affidavit lacked the proper foundation

because Mueller did not aver that he compared the original documents to the copies

attached to his affidavit.

       {¶17} In first addressing Stevens’s argument concerning discovery matters, we are

mindful that the manner in which a trial court manages its dockets and controls discovery

rests completely within the discretion of the trial court.   6750 BMS, L.L.C. v. Drentlau,

2016-Ohio-1385, 62 N.E.3d 928, ¶ 18 (8th Dist.), citing State ex rel. V Cos. v. Marshall

Cty. Aud., 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998). A reviewing court will

therefore not disturb a trial court’s decision in this regard absent an abuse of this

discretion.   6750 BMS, L.L.C. Additionally, a trial court’s decision to exclude expert

testimony will not be disturbed absent an abuse ofdiscretion that causes material

prejudice. Braxton v. Kilbane, 8th Dist. Cuyahoga No. 104166, 2017-Ohio-185, ¶ 9,

citing Krischbaum v. Dillon, 58 Ohio St.3d 58, 66, 567 N.E.2d 1291 (1991).
       {¶18} Here, Stevens claims that the trial court erred by not allowing him to

conduct the deposition of Chase vice president, Samuel Mueller. Stevens alleges that

Mueller’s affidavit lacks the proper foundation because Mueller failed to aver that he

compared the original note and mortgage to the copies attached to his affidavit.

According to Stevens, the court’s preventing Stevens from deposing Mueller was

therefore prejudicial.

       {¶19} In support of his claim, Stevens attached to his brief in opposition to

Chase’s summary judgment motion an affidavit of former counsel, who states that

counsel has made three efforts to obtain the plaintiff’s deposition, and each time, the

plaintiff’s lawyer contacted Stevens’s attorney and advised him “that the deposition could

not go forward as planned.”     This affidavit, however, is evidence only of counsel’s

attempts to obtain Mueller’s deposition; it is not evidence that the trial court prevented

Stevens from taking Mueller’s deposition.       Additionally, there is no evidence that

Stevens ever filed a motion to compel Mueller’s deposition.

       {¶20} Moreover, as we discuss later in this opinion, Mueller is not required to aver

that he compared the original documents to the copies that are attached to his affidavit.

Therefore, even if the court did not allow Stevens to depose Mueller in this regard,

Stevens cannot demonstrate that he was prejudiced by his failure to obtain Mueller’s

deposition.

       {¶21} Stevens also claims that the trial court erred in excluding the testimony of

his proffered experts, Paatalo and Kelley. Paatalo was a mortgage broker and is a
private investigator. His testimony related to the issues of chain of title and assignment

of the mortgage.    Kelley is an electrical and computer engineer.      Kelley’s testimony

concerned the authenticity of the signature on the original loan documentation.

       {¶22} In most cases, a trial court should admit expert testimony when the

testimony is material, relevant, and is admitted in accordance with Evid.R. 702.

Schwartz v. Honeywell Internatl., Inc., 2016-Ohio-3175, 66 N.E.3d 118 , ¶ 14 (8th Dist.),

 appeal accepted, 148 Ohio St.3d 1442, 2017-Ohio-1427, 72 N.E.3d 656. Evid.R. 702

governs the circumstances under which a witness may testify as an expert:

       (A)   The witness’ testimony either relates to matters beyond the
       knowledge or experience possessed by lay persons or dispels a
       misconception common among lay persons;

       (B) The witness is qualified as an expert by specialized knowledge, skill,
       experience, training, or education regarding the subject matter of the
       testimony;

       (C) The witness’ testimony is based on reliable scientific, technical, or
       other specialized information.

The proffered expert testimony must satisfy all of the above criteria. Id.

       {¶23} Thus, in accordance with this rule, a witness may testify as an expert if he is

qualified as an expert, the testimony relates to matters beyond the understanding of lay

persons, and the testimony is based upon reliable information.                    Azzano v.

O’Malley-Clements, 126 Ohio App.3d 368, 373, 710 N.E.2d 373 (8th Dist.1998), citing

Nichols v. Hanzel, 110 Ohio App.3d 591, 597, 674 N.E.2d 1237 (4th Dist.1996). “[T]he

expert must demonstrate some knowledge on the particular subject superior to that
possessed by an ordinary juror.”    Azzano, citing Scott v. Yates, 71 Ohio St.3d 219, 221,

643 N.E.2d 105 (1994).

       {¶24} A determination of whether a witness is qualified to testify as an expert is a

matter within the discretion of the trial court and will not be reversed “‘unless there is a

clear showing’” that the trial court abused its discretion.              State v. Lumbus,

2016-Ohio-380, 59 N.E.3d 580, ¶ 95 (8th Dist.), quoting State v. Wages, 87 Ohio

App.3d 780, 786, 623 N.E.2d 193 (8th Dist.1993), citing State v. Maupin, 42 Ohio St.2d

473, 330 N.E.2d 708 (1975).

       {¶25} Paatalo opines that the assignment of the mortgage to Chase was fraudulent.

 In support of his opinion, Paatalo submits information obtained from websites

concerning the FDIC’s seizure of WaMu, Fannie Mae, and MERS. Paatalo concludes,

based upon his review of the websites, that because WaMu had been seized by the

government, it “ceased to exist” by the date of the assignment to Chase, and Fannie Mae

was the owner of the note and mortgage.

       {¶26} However, as the trial court noted, the information obtained by Paatalo is

information available to the general public and not subject to a reasonable dispute.       In

addition, Paatalo states in his affidavit that his testimony was based upon the above

websites, it involves “the factual aspects of * * * chain of title,” and his analyses “are not

scientific in nature.”   Paatalo’s testimony was therefore not based upon any “scientific,

technical, or other specialized information.” See Evid.R. 702.
       {¶27} Moreover, as we discuss later in this opinion, Stevens lacks the standing

necessary to challenge the assignment of the note and mortgage from MERS to Chase.

Therefore, Paatalo’s testimony is irrelevant and not material to the facts at hand.     Even if

Stevens could contest the assignment, one’s ownership status is irrelevant to one’s

entitlement to foreclosure. Bank of Am., N.A. v. Calloway, 2016-Ohio-7959, 74 N.E.3d

843, ¶ 15 (8th Dist.).   “A person may be a ‘person entitled to enforce’ the instrument

even though the person is not the owner of the instrument or is in wrongful possession of

the instrument.” R.C. 1303.31(B).

       {¶28} Kelley attests that the documents attached to Chase’s complaint and motion

for summary judgment are not the “wet ink” copy of the note, mortgage, and mortgage

assignment; Stevens’s signature on the copy of the note is a “computer forgery”; and Liz

Papke’s endorsement is not authentic. The trial court found that “it is customary that the

court filings of the loan documents are not the wet ink copies but duplicates of the

originals,” Chase provided evidence, through Samuel Mueller’s affidavit, that Chase is in

possession of the original note, and Kelley presented no facts that establish or infer fraud

in the execution of the loan documents. As we discuss in this opinion, an affiant is not

required to compare the original note to the copies attached to the pleadings.        Nor is he

required to explain the basis of his personal knowledge. Furthermore, Stevens lacks

standing to contest the assignment or its purported signatures. On this record, we cannot

find an abuse ofdiscretion that causes material prejudice when the trial court did not

allow the proffered expert testimony of Paatalo and Kelley.
      {¶29} In support of its motion for summary judgment, Chase attached the affidavit

of Samuel B. Mueller, Chase vice president, a copy of the promissory note endorsed in

blank by Liz Papke, vice president of WaMu, the mortgage, and an assignment of the note

and mortgage to Chase.

      {¶30} Civ.R. 56(C) provides an exclusive list of materials that a party may use in

support of a motion for summary judgment:

      Summary judgment shall be rendered forthwith if the pleadings,
      depositions, answers to interrogatories, written admissions, affidavits,
      transcripts of evidence, and written stipulations of fact, if any, timely filed
      in the action, show that there is no genuine issue as to any material fact and
      that the moving party is entitled to judgment as a matter of law. No
      evidence or stipulation may be considered except as stated in this rule.

Huntington Natl. Bank v. Blount, 8th Dist. Cuyahoga No. 98514, 2013-Ohio-3128, ¶ 18.

“If a document does not fall within one of the categories of evidence listed in Civ.R.

56(C), it can only be introduced as proper evidentiary material when it is incorporated by

reference in a properly framed affidavit pursuant to Civ.R. 56(E).” Lebron v. A&A

Safety, Inc., 8th Dist. Cuyahoga No. 96976, 2012-Ohio-1637, ¶ 8, citing Biskupich v.

Westbay Manor Nursing Home, 33 Ohio App.3d 220, 222, 515 N.E.2d 632 (8th

Dist.1986).

      {¶31} Concerning affidavits filed in relation to summary judgment, Civ.R. 56(E)

provides that

      [s]upporting and opposing affidavits shall be made on personal knowledge,

      shall set forth such facts as would be admissible in evidence, and shall show

      affirmatively that the affiant is competent to testify to the matters stated in
         the affidavit.    Sworn or certified copies of all papers or parts of papers

         referred to in an affidavit shall be attached to or served with the affidavit.

         {¶32} “Personal knowledge” has been defined as “knowledge gained through

firsthand observation or experience, as distinguished from a belief based upon what

someone else has said.” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St. 3d

314, 2002-Ohio-2220, 767 N.E.2d 707. Where an affiant indicates that he or she is an

employee of the bank, his or her job duties include the supervision of the loan, he or she

has personal knowledge of the loan, and he or she is the records custodian of the records

relating to the mortgage and line of credit at issue, the affidavit complies with Civ.R.

56(E).    See Blount at ¶ 20.       Moreover, where an affiant attests that he or she has

personal knowledge of the transaction, “this fact cannot be disputed absent evidence to

the contrary.”       Household Realty Corp. v. Henes, 8th Dist. Cuyahoga No. 85916,

2007-Ohio-5846, ¶ 12-13; see also Bank One, N.A. v. Swartz, 9th Dist. Lorain No.

03CA008308, 2004-Ohio-1986, ¶ 14 (“Unless controverted by other evidence, a specific

averment that an affidavit pertaining to business is made upon personal knowledge of the

affiant satisfies the Civ.R. 56(E) requirement that affidavits both in support or in

opposition to motions for summary judgment show that the affiant is competent to testify

to the matters stated”).

         {¶33} Here, Mueller attests in his affidavit that he is authorized to make this

affidavit on behalf of Chase and he based his affidavit on his review of Chase’s business

records relating to the borrower’s loan, including copies of the note and mortgage, and his
personal knowledge of how the records are maintained.           Mueller states that he

“personally verified the accuracy of the factual information in the affidavit” based upon

his review of Chase’s business records.      Mueller also averred that the documents

attached to Chase’s motion for summary judgment are true and correct copies of the note

and mortgage and that Chase is in possession of the original note and was in possession

of the note prior to commencement of the foreclosure action.         Mueller’s affidavit

therefore complies with Civ.R. 56(E).

      {¶34} Stevens’s argument that Mueller’s affidavit lacks the proper foundation

because Mueller never averred that he compared the original note and mortgage to the

copies is without merit. This court has specifically rejected that argument in Wells

Fargo Bank, N.A. v. Hammond, 2014-Ohio-5270, 22 N.E.3d 1140 (8th Dist.):

      As for the decision of the Fifth District Court of Appeals in [Wachovia
      Bank of Delaware, N.A. v. Jackson, 5th Dist. Stark No. 2010-CA-000291,
      2011-Ohio-3203 ¶ 46, 49], which provides that summary judgment
      affidavits based on documents must include an averment that the affiant
      compared copies of the documents attached to the affidavit with the
      originals, this court has not adopted this as a requirement under Civ.R.
      56(E), nor do we intend to do so because the Ohio Supreme Court has not
      made this a requirement of Civ.R. 56(E).

(Citation omitted.) Hammond at ¶ 37, citing HSBC Mtge. Servs. v. Williams, 12th Dist.

Butler No. CA2013-09-174, 2014-Ohio-3778, ¶ 19 (stating this is not required under

State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981));

Nationstar Mtge., L.L.C. v. Wagener, 8th Dist. Cuyahoga No. 101280, 2015-Ohio-1289, ¶

37; see also United States Bank N.A. v. Aguilar-Crow, 7th Dist. Mahoning No. 15 MA

0113, 2016-Ohio-5391, ¶ 31.    “There is no requirement that an affiant explain the basis
for his personal knowledge where his personal knowledge can be reasonably inferred

based on the affiant’s position and other facts contained in the affidavit.”       Nationstar

Mtge. L.L.C. v. Perry, 8th Dist. Cuyahoga No. 99497, 2013-Ohio-5024, ¶ 15.

        {¶35} Stevens also argues that Chase’s documentary evidence fails to establish that

Chase is the party entitled to enforce the note and mortgage against him.             Stevens

specifically challenges Chase’s status as a holder of the note.          In support, Stevens

questions the chain of note transfers and assignment of the mortgage.

        {¶36} In a foreclosure action, a party may establish its interest in the suit, and thus

have standing to bring a foreclosure suit, when at the time it files its complaint in

foreclosure, it either (1) has had the mortgage assigned to it, or (2) is the holder of the

note.   Calloway, 2016-Ohio-7959, 74 N.E.3d 843, at ¶ 13, citing CitiMortgage, Inc. v.

Patterson, 2012-Ohio-5894, 984 N.E.2d 392, ¶ 21 (8th Dist.), citing Fed. Home Loan

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

        {¶37} A note secured by a mortgage is a negotiable instrument that is governed by

R.C. Chapter 1303. Wells Fargo Bank, N.A. v. Carver, 2016-Ohio-589, 60 N.E.3d 473,

¶ 14 (8th Dist.).    Under R.C. 1303.31(A), three “persons” are entitled to enforce an

instrument:    (1) the holder of the instrument; (2) a nonholder in possession of the

instrument who has the rights of a holder; and (3) a person not in possession of the

instrument who is entitled to enforce the instrument under R.C. 1303.38 or 1303.58(D).

R.C. 1301.201(B)(21)(a) defines a holder of a negotiable instrument as “[t]he person in

possession of a negotiable instrument that is payable either to bearer or to an identified
person that is the person in possession.” When an instrument is endorsed in blank, it is

payable to the bearer. R.C. 1303.25(B).

      {¶38} Chase therefore has standing and is entitled to enforce the note if it can

establish either that it was the holder of the note or it had been assigned the mortgage.

Patterson; U.S. Bank Natl. Assn. v. Gray, 10th Dist. Franklin No. 12AP-953,

2013-Ohio-3340, ¶ 27.

      {¶39} Here, Chase attached a copy of the note endorsed in blank as well as a copy

of the assignment to its complaint and its motion for summary judgment. Mueller

attested in his affidavit that Chase has been in possession of the note since the

commencement of the foreclosure action and the copy attached to his affidavit is a true

and correct copy of the note in Chase’s possession.         Therefore, by virtue of its

possession of the note indorsed in blank, Chase demonstrated it is the holder of the note

and entitled to enforce 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.

      {¶40} To the extent that Stevens contests the assignment of the mortgage, his

argument is without merit. In his opposition, Stevens claims that the assignment was

“defective” in that it was signed by a “known robo-signor,” and he should be permitted to

contest the assignment on that basis. However, the law in this district provides 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. See, e.g.,

Everbank v. Katz, 8th Dist. Cuyahoga No. 100603, 2014-Ohio-4080, ¶ 8; Bank of New

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

N.Y. Mellon Trust Co., N.A. v. Unger, 8th Dist. Cuyahoga No. 97315, 2012-Ohio-1950, ¶

35.   Where the note was indorsed in blank, “defenses relating to chain of title are null

and inapplicable, because it is immaterial how the person became the holder of the note.”

 Bank of Am. N.A. v. Farris, 2015-Ohio-4980, 50 N.E.3d 1043, ¶ 27 (8th Dist.), citing

Froimson.

       {¶41} Here, Chase attached to its summary judgment motion a copy of the

assignment from MERS, as nominee for WaMu, to Chase. Stevens is not a party to the

above assignment, nor a third-party beneficiary of the assignment.      Nor does Stevens

claim he was injured as a result of the assignment.   Accordingly, he fails to demonstrate

any injury and therefore lacks standing to challenge the assignment or any of the

circumstances upon which the assignment was created.

       {¶42} Moreover, the allegation of an improper assignment is irrelevant because,

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

No. 98502, 2013-Ohio-1657, at ¶ 65, citing U.S. Bank N.A. v. Marcino, 181 Ohio App.3d

328, 908 N.E.2d 1032, ¶ 52 (7th Dist.).

       For nearly a century, Ohio courts have held that whenever a promissory
       note is secured by a mortgage, the note constitutes the evidence of the debt,
       and the mortgage is a mere incident to the obligation. Therefore, the
       negotiation of a note operates as an equitable assignment of the mortgage,
       even though the mortgage is not assigned or delivered.

(Citations omitted.) Marcino at ¶ 52. Accordingly, the physical transfer of the note

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

whether the mortgage is validly assigned. Najar; Marcino; see also, e.g., Wells Fargo

Bank, N.A. v. Byers, 10th Dist. Franklin No. 13AP-767, 2014-Ohio-3303.

       {¶43} In light of the foregoing, we find that Chase has provided evidence that it

was entitled to enforce the note before filing the complaint in foreclosure and there is no

genuine issue of material fact concerning its standing to commence this action.         The

undisputed evidence shows that $98,472.41 plus interest was due on the note.      Stevens’s

opposition to Chase’s motion for summary judgment, in which he relies largely upon

inadmissible expert testimony and arguments in favor of changing the law in this district,

failed to meet his reciprocal burden to set forth specific facts showing there is a genuine

issue of material fact that remains to be litigated.   Accordingly, the trial court properly

granted summary judgment in Chase’s favor.

       {¶44} Stevens’s assignment of error is overruled.

       {¶45} 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, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
LARRY A. JONES, SR., J., CONCUR
