[Cite as Wells Fargo Bank, NA v. McConnnell, 2012-Ohio-5159.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

WELLS FARGO BANK, NA                                    JUDGES:
                                                        Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                              Hon. William B. Hoffman, J.
                                                        Hon. Julie A. Edwards, J.
-vs-
                                                        Case No. 12CAE070040
RYAN MCCONNELL, ET AL.

        Defendants-Appellants                           OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Delaware County Court of
                                                    Common Pleas, Case No. 11CV060733


JUDGMENT:                                           Affirmed


DATE OF JUDGMENT ENTRY:                             November 5, 2012


APPEARANCES:


For Plaintiff-Appellee                              For Defendants-Appellants


SCOTT A. KING                                       JOHN SHERROD
Thomas Hine LLP                                     Mills, Mills, Fiely & Lucas, LLC
Austin Landing I                                    503 South Front Street, Ste. 240
10050 Innovation Drive, Suite 400                   Columbus, Ohio 43215
Dayton, Ohio 45401

TERRANCE A. MEBANE
Thompson Hine LLP
41 South Hight Street, Suite 1700
Columbus, Ohio 43215
Delaware County, Case No. 12CAE070040                                                 2

Hoffman, J.


       {¶1}   Defendants-appellants Ryan and Stefanie McConnell appeal the June 13,

2012 Judgment Entry entered by the Delaware County Court of Common Pleas, which

granted summary judgment in favor of plaintiff-appellee Wells Fargo Bank NA (“the

Bank”).

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On August 19, 2005, Appellants executed a promissory note (“the Note”).

The Note was secured by a mortgage against real property located at 128 High

Meadows Circle, Powell, Ohio (“the Property”).          The Note was payable to, and the

Mortgage was in favor of, the Bank.         Appellants and the Bank executed a Loan

Modification Agreement (“the LMA”) dated April 22, 2009.           The LMA changed the

amount of the unpaid principal balance under the Note, reduced Appellants’ monthly

mortgage payments, and lowered the interest rate under the Note.

       {¶3}   On June 22, 2011, the Bank filed a Complaint against Appellants, seeking

to recover the balance due under the Note, and to foreclose on the Mortgage secured

by the Property. The Bank attached to the Complaint copies of the Note payable to the

Bank, the Mortgage in favor of the Bank, and the LMA. Appellants filed an Answer on

August 26, 2011, and requested mediation as well as a stay pending mediation. The

trial court denied Appellants’ request for mediation.

       {¶4}   The Bank filed a motion for summary judgment on November 3, 2011. An

affidavit executed by Charles DeBono, Jr. accompanied the motion. In his affidavit,

DeBono stated Appellants had executed the Note and the Mortgage, and identified the

balance due. DeBono did not specifically identify copies of the Note and Mortgage
Delaware County, Case No. 12CAE070040                                                  3


although such was attached to his affidavit. The Copy of the Note did not bear any

indorsements.

      {¶5}   The Bank subsequently filed the affidavits of Susana Leal Salgado and

Edward H. Cahill. In her affidavit, Salgado authenticated and attached copies of the

Note and LMA. The copy of the Note included an indorsement which “bleeds through”

to the page bearing Appellants’ signatures. With his affidavit, Cahill attached certified

copies of the Mortgage and LMA.

      {¶6}   Appellant filed a memorandum contra to which the Bank filed a reply. Via

Judgment Entry and Decree in Foreclosure filed June 13, 2012, the trial court granted

the Bank’s motion for summary judgment and issued a decree in foreclosure.

      {¶7}   It is from this judgment entry Appellants appeal, assigning as error:

      {¶8}   “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION

FOR SUMMARY JUDGMENT ON THE BASIS THAT APPELLEE WAS NOT

REQUIRED TO AMEND THE COMPLAINT TO INCLUDE THE INDORSED

PROMISSORY NOTE.

      {¶9}   “II. THE TRIAL COURT ERRED IN CONSIDERING THE AFFIDAVIT IN

SUPPORT OF APPELLEE’S MOTION FOR SUMMARY JUDGMENT SINCE SAID

AFFIDAVIT DID NOT PROPERLY AUTHENTICATE THE NOTE/MORTGAGE.”

                      SUMMARY JUDGMENT STANDARD OF REVIEW

      {¶10} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As
Delaware County, Case No. 12CAE070040                                                   4

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

      {¶11} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain 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 party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      {¶12} It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial

court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be
Delaware County, Case No. 12CAE070040                                                   5


denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

                                               I, II

       {¶13} Because Appellants’ assignments of error are interrelated, we shall

address them together. In their first assignment of error, Appellants challenge the trial

court’s grant of summary judgment in favor of the Bank upon a finding the Bank was not

required to amend its Complaint to include the indorsed promissory note.          In their

second assignment of error, Appellants take issue with the trial court’s consideration of

the affidavit in support of the Bank’s motion for summary judgment because said

affidavit did not properly authenticate the Note and Mortgage.

       {¶14} Appellants assert the Bank did not follow the proper procedural guidelines

set out in Civ. R. 56. Appellants explain the copy of the Note attached to the Complaint

as well as the copy of the Note attached to the motion for summary judgment are not

indorsed and do not contain any “bleed through”, however, the copy of the Note

attached to the Affidavit of Authenticity by Susana Leal Salgado is indorsed and

contains a “bleed through”. According to Appellants, the Bank was required to amend

its Complaint to include a copy of an indorsed note. The Bank merely altered the

evidence before the court by submitting Salgado’s Affidavit of Authenticity. Appellants

rely upon Civ.R. 10(D) in support of their position, which states:
Delaware County, Case No. 12CAE070040                                                   6


             “When any claim or defense is founded on an account or other

      written instrument, a copy of the account or written instrument must be

      attached to the pleading. If the account or written instrument is not

      attached, the reason for the omission must be stated in the pleading.”

      {¶15} The Bank attached a copy of the Note to its Complaint.             The Bank

subsequently submitted a copy of the indorsed Note with the Affidavit of Authenticity

filed in support of its motion for summary judgment. Appellants did not come forward

with any Civ. R. 56 evidence to create a genuine issue of fact as to whether the original

Note was actually indorsed. Because the evidence was ultimately provided to the trial

court, we find no prejudicial error in the trial court’s consideration of the evidence and

reliance on it in granting summary judgment in favor of the Bank.

      {¶16} We also disagree with Appellants’ assertion the Salgado Affidavit did not

properly authenticate the Note and Mortgage. The Bank alleged in the Complaint it is

entitled to enforce the Note pursuant to R.C. 1303.31. In his Affidavit of Status of

Account, DeBono averred the Bank “is the holder of, or is otherwise entitled to enforce,

the Note and Mortgage.” DeBono Affidavit at para. 7. Additionally, in her Affidavit of

Authenticity, Salgado states the Note and LMA which were attached to the affidavit

were true and accurate copies of the original note and original loan modification. These

documents list the Bank as the lender. Both affidavits are proper Civ. R. 56(C)

evidence. Appellants have not presented any evidence the copies of the Note and

Mortgage are not authentic. Appellants failed to create a material issue of fact.

      {¶17} Appellants’ first and second assignments of error are overruled.
Delaware County, Case No. 12CAE070040                                           7


      {¶18} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ W. Scott Gwin _____________________
                                        HON. W. SCOTT GWIN


                                        s/ Julie A. Edwards___________________
                                        HON. JULIE A. EDWARDS
Delaware County, Case No. 12CAE070040                                          8


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


WELLS FARGO BANK, NA                     :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
RYAN MCCONNELL, ET AL.                   :
                                         :
       Defendants-Appellants             :         Case No. 12CAE070040


       For the reasons stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ W. Scott Gwin_____________________
                                         HON. W. SCOTT GWIN


                                         s/ Julie A. Edwards___________________
                                         HON. JULIE A. EDWARDS
