[Cite as Bayview Loan Servicing, L.L.C. v. St. Cyr, 2017-Ohio-2758.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 104655



                   BAYVIEW LOAN SERVICING L.L.C.

                                                            PLAINTIFF-APPELLEE

                                                     vs.

                             DARWIN ST. CYR, ET AL.
                                                            DEFENDANTS-APPELLANTS




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-15-848614

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

        RELEASED AND JOURNALIZED:                          May 11, 2017
ATTORNEY FOR APPELLANTS

Ivan G. Haggins
3363 Chelsea Drive
Cleveland Heights, OH 44118


ATTORNEYS FOR APPELLEE

For Bayview Loan Servicing, L.L.C.

Ted A. Humbert
Laura C. Infante
Jason A. Whitacre
Law Offices of John D. Clunk Co. L.P.A.
4500 Courthouse Blvd., Ste. 400
Stow, OH 44224

For City of Cleveland Heights

Sara M. Donnersbach
Weltman Weinberg & Reis Co., L.P.A.
Lakeside Place, Ste. 200
323 Lakeside Ave., West
Cleveland, OH 44113

ALSO LISTED:

Dollar Bank, F.S.B.
3 Gateway Center
401 Liberty Ave.
Pittsburgh, PA 15222

State of Ohio Department of Taxation
150 East Gay Street, 21st Floor
Columbus, OH 43215

Samantha Elizabeth Thorpe
2111 Miramar Blvd.
Cleveland, OH 44121
TIM McCORMACK, P.J.:

       {¶1}           Defendant-appellant Darwin St. Cyr appeals from a judgment of the

Cuyahoga County Court of Common Pleas granting foreclosure in favor of

plaintiff-appellee Bayview Loan Servicing, L.L.C. (“Bayview”).         For the following

reasons, we affirm.

                         Procedural History and Substantive Facts

       {¶2} In June 2008, St. Cyr purchased a home in Cleveland, Ohio.       He executed

a promissory note in the amount of $106,575.       The note was secured by a mortgage

against this property, executed in favor of Mortgage Electronic Registration Systems, Inc.

(“MERS”) as nominee for Taylor, Bean & Whitaker Mortgage Corp. and its successors

and assigns.    In May 2010, MERS assigned the mortgage to BAC Home Loans

Servicing, L.P., f.k.a., Countrywide Home Loans Servicing, L.P. In March 2014, Bank

of America, N.A., successor by merger to BAC Home Loans Servicing, L.P., f.k.a.

Countrywide Home Loans Servicing, L.P., assigned the mortgage to the Secretary of

Housing and Urban Development (“HUD”).          Thereafter, in April 2014, HUD assigned

the mortgage to appellee, Bayview, who was the current loan servicer at the time this

action was filed.

       {¶3} In July 2015, Bayview filed its complaint in foreclosure, seeking judgment

on the note and foreclosure of the mortgage.      Bayview alleged that it was entitled to

enforce the note, it was in possession of the note, and it was the record holder of the

mortgage at the time it filed the complaint.   Bayview further alleged that St. Cyr’s loan
account had fallen into default and St. Cyr had not cured the default, which resulted in the

acceleration of the note and mortgage.    Bayview stated that it was therefore entitled to

foreclosure.

       {¶4} When St. Cyr did not answer the complaint, Bayview moved for default

judgment. At the default judgment hearing, however, St. Cyr filed a motion for leave to

file an answer instanter, which the trial court granted.     Thereafter, upon the court’s

instructions, Bayview provided St. Cyr with a loss mitigation packet and trial payment

plan offer.    St. Cyr rejected Bayview’s offer and requested a case management

conference be scheduled.     The court granted St. Cyr’s motion for a case management

conference and ordered all discovery to be completed by April 18, 2016, and all

dispositive motions due by May 2, 2016.

       {¶5} On February 29, 2016, St. Cyr served upon Bayview a request for

admissions, among other discovery requests. On April 15, 2016, Bayview filed its first

notice of service of discovery.   On April 18, 2016, Bayview filed a “combined motion to

amend case management schedule and motion for extension to respond” to St. Cyr’s

discovery requests. St. Cyr, however, filed a brief in opposition to this motion. Both

motions were denied on April 20, 2016, and with this order, the court indicated that all

“nonexpert discovery is now closed.” On April 21 and April 25, Bayview filed notices

of service of discovery responses.    Bayview filed a notice of service of supplemental

discovery responses on May 9, 2016.

       {¶6} After discovery was complete, St. Cyr moved for summary judgment,
alleging, essentially, that because Bayview failed to timely respond to St. Cyr’s discovery

requests, Bayview admitted to certain facts and these facts establish that no genuine

issues of material fact exist and he was therefore    entitled to judgment as a matter of

law. Bayview then filed its own motion for summary judgment, a motion for default

judgment, and a brief in opposition to St. Cyr’s motion for summary judgment. Along

with its reply brief in support of its summary judgment, Bayview moved the court to

“withdraw deemed admissions or for the court to rule that the same were not admitted and

allow responses [the] plaintiff provided.”

       {¶7} On June 6, 2016, the trial court granted Bayview’s motion for summary

judgment and motion for default judgment, and it denied St. Cyr’s motion. The trial

court issued a supplemental journal entry on June 13, 2016. St. Cyr now appeals,

assigning two errors for our review:

       I. The trial court erred in granting Bayview’s motion for summary
       judgment and in denying St. Cyr’s motion for summary judgment,
       particularly given the deemed admissions by Bayview.

       II. The trial court erred in granting Bayview’s motion for summary
       judgment and in denying St. Cyr’s motion for summary judgment, as
       Bayview failed to provide sufficient evidence of entitlement to foreclosure
       and/or damages.
                                    Summary Judgment

       {¶8}    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).

       {¶9} 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.

       {¶10} 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.

        {¶11} 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

        {¶12} As the arguments overlap, we address the assignments of error together.

St. Cyr contends that the trial court erred when it denied his motion for summary

judgment and granted Bayview’s motion for summary judgment because Bayview

admitted it had no legal interest in the note or the mortgage by virtue of failing to timely

respond to St. Cyr’s request for admissions. In support, St. Cyr attached to his motion

the request for admissions propounded to Bayview, which called upon the plaintiff to

admit, among other statements, that it has no “legal interest, a beneficial interest, or any

other interest in the mortgage or note” (Request No. 1); it has no documents

demonstrating “the note was physically transferred to the plaintiff before commencement

of the instant matter” (Request No. 9); the plaintiff “was not the party who entered and

maintained MERS records” (Request No. 10); and the original lender, Taylor, Bean &

Whitaker “had no right to assign any purported interest in the property, note, mortgage, or

otherwise” (Request No. 15).

        {¶13} St. Cyr also contends that even if the requests were not deemed admitted,

there were no genuine issues of material fact and he was entitled to judgment as a matter
of law. In support, he advances the following arguments: (1) Bayview’s affidavit in

support of summary judgment was insufficient; and (2) Bayview failed to provide

sufficient evidence that it was a real party in interest, it had standing, it was entitled to

foreclosure on the property, and it was entitled to damages in the amount of $104,717.43

with interest from January 1, 2010.

       {¶14} We first address St. Cyr’s request for admissions propounded to Bayview.

St. Cyr alleges that because Bayview’s discovery responses were served upon him three

weeks or more past the discovery deadline, the responses must be deemed admitted and,

therefore, he is entitled to judgment as a matter of law.   In response, Bayview provides

that, given the voluminous nature of the discovery requests, it required additional time in

which to respond, and on March 24, 2016, it requested and received approval from St.

Cyr’s counsel to extend the time to file its discovery responses until April 18, 2016. On

April 18, Bayview requested another extension and it received approval from defense

counsel to extend the time until May 9, 2016.         Bayview further states that after it

received defense counsel’s consent, St. Cyr withdrew its consent that same day via an

after-hours email from defense counsel.     Bayview learned that its motion for extension

had been denied on April 20, and it served its response to the defendant’s first set of

admissions the following day. Bayview served supplemental discovery responses (to a

request for production of documents) that included a new payoff quote on May 9, 2016.

       {¶15} It is well settled in Ohio that in accordance with Civ.R. 36(A), “‘the matter

set forth in the requests for admissions is deemed admitted if they are not answered within
rule.’” Bank of N.Y. v. Jordan, 8th Dist. Cuyahoga No. 88619, 2007-Ohio-4293, ¶ 34,

quoting Beechwoods, Inc. v. Hosfelt, 10th Dist. Franklin No. 79AP-117, 1979 Ohio App.

LEXIS 12493 (Oct. 9, 1979).     Thus, where a party fails to timely respond to the request

for admissions, those admissions become fact. Smallwood v. Shiflet, 8th Dist. Cuyahoga

No. 103853, 2016-Ohio-7887, ¶ 18. It is equally settled law that a motion for summary

judgment may be based upon the admitted matter. Jordan.          “[W]here a party files a

written request for admission, a failure of the opposing party to timely answer the request

constitutes a conclusive admission pursuant to Civ.R. 56(C) in case of a summary

judgment.” Klesch v. Reid, 95 Ohio App.3d 664, 674, 643 N.E.2d 571 (8th Dist.1994).

      {¶16} However, the trial court may permit withdrawal or amendment of

admissions under certain circumstances:

      Subject to the provisions of Rule 16 governing modification of a pretrial
      order, the court may permit withdrawal or amendment when the
      presentation of the merits of the action will be subserved thereby and the
      party who obtained the admission fails to satisfy the court that withdrawal
      or amendment will prejudice the party in maintaining his action or defense
      on the merits.

Civ.R. 36(B); Jade Sterling Steel Co. v. Stacey, 8th Dist. Cuyahoga No. 88283,

2007-Ohio-532, ¶ 11.

      {¶17} Therefore, in accordance with Civ.R. 36(B), the court may permit

withdrawal where allowing withdrawal “‘will aid in presenting the merits of the case and

the party who obtained the admission fails to satisfy the court that withdrawal will

prejudice him in maintaining his action.’”           6750 BMS, L.L.C. v. Drentlau,

2016-Ohio-1385, 62 N.E.3d 928, ¶ 14 (8th Dist.), quoting Cleveland Trust Co. v. Willis,
20 Ohio St.3d 66, 67, 485 N.E.2d 1052 (1985).           Thus, this rule “‘emphasizes the

importance of having the action resolved on the merits, while at the same time assuring

each party that justified reliance on an admission in preparation for trial will not operate

to his prejudice.’” Id.

       {¶18} Civ.R. 36(B) does not require a written motion be filed, nor does it provide a

time when a motion must be filed; rather, such matter is left to the discretion of the trial

court. Jade Sterling Steel Co., citing Balson v. Dodds, 62 Ohio St.2d 287, 291, 405

N.E.2d 293 (1980).        In fact, contesting the admissions in a motion for summary

judgment satisfies the requirements of the rule. Id.

       {¶19} It is within the trial court’s discretion whether it will permit or deny the

withdrawal or amendment of admissions.       6750 BMS, L.L.C. Likewise, it is within the

court’s discretion whether to accept the filing of late responses to a request for

admissions.    Id.

       {¶20} We therefore review a trial court’s decision regarding its consideration of a

party’s motion to withdraw or amend admissions for an abuse of discretion.             Jade

Sterling Steel Co. at ¶ 12.   An abuse of discretion implies the trial court was arbitrary,

unreasonable, or unconscionable. Id.

       {¶21} Here, we recognize that Bayview’s response to St. Cyr’s request for

admissions was untimely, and therefore, St. Cyr’s request for admissions was

automatically deemed admitted.      However, not only did Bayview move the court to

withdraw or amend the deemed admissions, it also contested the truth of the Civ.R. 36(A)
admissions in its opposition to St. Cyr’s motion for summary judgment and in Bayview’s

own motion for summary judgment. Additionally, Bayview provided responses to St.

Cyr’s request for admissions within one day of receiving notice of the court’s denial of

the requested extension.

       {¶22} Moreover, in its motion to withdraw or amend the deemed admissions and

in its summary judgment briefs, Bayview demonstrated that amendment or withdrawal of

the admissions would assist in justly resolving this action on its merits, and conversely,

should the court deny its motion to withdraw or amend, Bayview would effectively be

prevented from presenting its case on the merits. One of the requests for admissions

asked that Bayview admit that it had no legal interest in the note or the mortgage.          If

Bayview was deemed to have admitted that it did not have any legal interest in the note or

mortgage, the admission “would effectively nullify its ability to make out its prima facie

case” and the presentation of the merits would be “subserved by permitting appellee to

withdraw the admissions.”       Lakeview Loan Servicing, L.L.C. v. Amborski, 6th Dist.

Lucas No. L-14-1242, 2016-Ohio-2978, ¶ 19.           “[W]here key controverted issues are

inadvertently or negligently admitted,” the end result “is an unjustified suppression of the

merits, and therefore, that presentation of the merits is subserved by permitting

withdrawal in such cases.”      Kutscherousky v. Integrated Communications Solutions,

L.L.C., 5th Dist. Stark No. 2004 CA 00338, 2005-Ohio-4275, ¶ 19.

       {¶23} Further, it is unlikely that St. Cyr can demonstrate prejudice.      “[W]here a

party all but conceded liability through its admission in a contested case, it is unlikely that
the opposing party could have reasonably relied on the truth of the admission.”

Kutscherousky at ¶ 27.     In such a case, it is doubtful that a party that obtained the

deemed admission could reasonably have believed the opposing party “‘intended to admit

liability in [the] contested action.’”   Id. at ¶ 28, quoting Westmoreland v. Triumph

Motorcycle Corp., 71 F.R.D. 192, 193 (D.Conn.1976). And even if the party did, in

fact, rely on that assumption, the courts are “‘loathe to reward what would have been an

unreasonable reliance in order to glorify technical compliance with the rules of civil

procedure.’”   Id.; Fifth Third Bank v. Meadow Park, L.L.C., 12th Dist. Clinton No.

CA2015-07-012, 2016-Ohio-753, ¶ 30.

       {¶24} The record shows that Bayview was working to comply with St. Cyr’s

discovery requests and it had, in fact, obtained at least one extension to respond.     The

record also shows that Bayview served its responses within one day of receiving notice

that the court denied its April 18 motion for extension of time, having received the court’s

notice on April 20 and serving its responses to St. Cyr’s request for admissions on April

21. St. Cyr did not file his motion for summary judgment until April 27.       Under these

circumstances, St. Cyr could not reasonably claim that he relied on the deemed

admissions.

       {¶25} In light of the foregoing, the trial court could reasonably find that Bayview

satisfied the requirements of Civ.R. 36(B). And by virtue of the trial court’s denial of

St. Cyr’s motion for summary judgment and its granting of Bayview’s motion for

summary judgment, the trial court implicitly withdrew the deemed admissions.
       {¶26} We are mindful that the manner in which a trial court manages its dockets

and controls discovery, including allowing extensions and addressing pending motions,

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

2016-Ohio-1385, 62 N.E.3d 928, at ¶ 18, 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. And under the facts in this case, we cannot say the trial court abused its

discretion.

       {¶27} In his motion for summary judgment, St. Cyr contends that, notwithstanding

the deemed admissions, “the plaintiff still cannot prove that it is a true real party in

interest or that it has the mandatory standing to maintain the instant foreclosure

proceeding.”   However, the burden is on the moving party to provide evidence to

support its claim that there is no genuine issue of material fact and he is entitled to

judgment in his favor. Dresher, 75 Ohio St.3d at 292-293, 662 N.E.2d 264.

       {¶28} 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).

       {¶29} Here, St. Cyr has failed to provide any evidence in support of its claim that

it is entitled to judgment as a matter of law. Rather, St. Cyr relies solely upon the

deemed admissions to support his claim, and the affidavit attached in support of his

summary judgment attests only to the circumstances surrounding his request for

admissions and Bayview’s untimely response thereto.         Thus, St. Cyr has failed to

identify portions of the record that demonstrate a genuine issue of material fact in

accordance with Civ.R. 56(C).

       {¶30} Conversely, Bayview provided the affidavit of Randall Jackson in support of

its motion for summary judgment. St. Cyr claims, however, that Bayview’s affidavit is

insufficient to satisfy Bayview’s summary judgment burden, because the affiant lacks

credibility “and substantiation” and the affidavit does not sufficiently aver that Bayview

was the actual and true holder of the note.

       {¶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} Jackson’s affidavit stated that he was a Bayview employee and authorized to

make the affidavit, that he was familiar with the business records maintained by Bayview
for the purpose of servicing mortgage loans, including the loan at issue, and he attested

that the business records reviewed and produced in this matter were “made at or near the

time by either persons with direct knowledge to the activity and transactions reflected in

such records or from information provided by person with direct knowledge of the

activity and transaction” and they were “kept in the course of its regularly conducted

business activity.” Jackson also stated that he had personal knowledge of the loan and

had personally examined the records of this loan. Finally, Jackson attested that the

documents attached to his affidavit were “true and accurate” copies of the assignment, the

note, and the mortgage.

       {¶34} Accordingly, Jackson’s affidavit complied with Civ. R. 56(E). St. Cyr

provided no evidence to the contrary, and mere unsupported allegations that the affiant

lacks credibility or substantiation is insufficient to demonstrate that the affiant is not

competent to testify to the matters stated.    Therefore, we find the affidavit of Randall

Jackson is proper summary judgment evidence in accordance with Civ.R. 56(C).

       {¶35} St. Cyr also argues that Bayview’s evidence in support of its motion for

summary judgment, including Jackson’s affidavit, failed to establish that Bayview was a

real party in interest, it had standing, it was entitled to foreclosure, or it was entitled to

damages.    St. Cyr specifically attacks the “unenforceable ‘blank endorsement’” and the

purported “bogus” assignments of the mortgage.

       {¶36} In a foreclosure action, the current holder of the note and the mortgage is the

real party in interest. Bank of Am., N.A. v. Calloway, 8th Dist. Cuyahoga No. 103622,
2016-Ohio-7959, ¶ 15; Wells Fargo Bank v. Stovall, 8th Dist. Cuyahoga No. 91802,

2010-Ohio-236.      Under the current law, “a party may establish its interest in the suit, and

thus have standing, when at the time it files its complaint of foreclosure, it either (1) has

had the mortgage assigned to it, or (2) it is the holder of the note.” Wells Fargo Bank v.

Rennert, 8th Dist. Cuyahoga No. 101454, 2014-Ohio-5292, ¶ 11, 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} Bayview therefore had standing and was entitled to enforce the note if it

established 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.

        {¶38} 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 non-holder 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).

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

assignments of mortgage to Bayview, to its complaint and the affidavit of Randall

Jackson in its motion for summary judgment. Jackson attested in his affidavit that

Bayview had been in possession of the note at least since the commencement of the

foreclosure action and the copy attached to his affidavit was a true and accurate copy of

the note in Bayview’s possession. Additionally, Bayview stated that in its discovery

responses to St. Cyr’s request for production of documents, it advised defense counsel

that it was in possession of the note and the note was available for inspection.

Therefore, by virtue of its possession of the note endorsed in blank, Bayview

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} St. Cyr also challenges Bayview’s right to enforce the mortgage, contesting

the assignment of the mortgage as “bogus.”       We first note 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. Bank of New York Mellon v.

Froimson, 8th Dist. Cuyahoga No. 99443, 2013-Ohio-5574, ¶ 17.            Here, Bayview

attached to its summary judgment a copy of the assignment of mortgage from MERS, as
nominee for Taylor, Bean & Whitaker Mortgage Corp. and its successors and assigns, to

BAC Home Loans Servicing, L.P., f.k.a., Countrywide Home Loans Servicing, L.P.; a

copy of the assignment of mortgage from Bank of America, N.A., successor by merger to

BAC Home Loans Servicing, L.P., f.k.a. Countrywide Home Loans Servicing, L.P. to the

Secretary of Housing and Urban Development (“HUD”); and a copy of the assignment of

mortgage from HUD to Bayview. St. Cyr was not a named party to any of the above

assignments, nor a third-party beneficiary of the assignments.       He therefore lacked

standing to challenge the assignments or any of the circumstances upon which the

assignments were created.

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

under Ohio law, the mortgage “follows the note” it secures. Najar at ¶ 65, citing U.S.

Bank N.A. v. Marcino, 181 Ohio App.3d 328, 2009-Ohio-1178, 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.

(Citation omitted.) Marcino. Accordingly, the physical transfer of the note endorsed in

blank constitutes an equitable assignment of the mortgage regardless of whether the

mortgage is validly assigned. Najar; Marcino; see also Wells Fargo Bank, N.A. v. Byers,
10th Dist. Franklin No. 13AP-767, 2014-Ohio-3303.

       {¶42} Finally, St. Cyr contends that Bayview has failed to establish it is entitled to

damages, stating that Bayview did not submit sufficient substantive evidence or a

competent, credible payment history.        However, Bayview attached to its summary

judgment a copy of the payment history, and Jackson attests in his affidavit that the

attached payment history was a true and accurate representation of the account activity on

St. Cyr’s loan account.    Jackson further attested to the default and the accuracy of the

notices of default served upon St. Cyr, as well as a “face to face” notice dated September

14, 2011.   These documents, and the affidavit that authenticates them, established the

default and the amount due and owing as $104,717.43, with interest.

       {¶43} In light of the foregoing, we find that Bayview 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 as a real

party in interest. St. Cyr’s response to Bayview’s motion for summary judgment, in

which St. Cyr relies upon Bayview’s deemed admissions, challenges Bayview’s affidavit

in support of its motion for summary judgment, and relied upon his own unsupported

allegations, failed to meet his reciprocal burden to set forth specific facts showing there is

a genuine issue that remains to be litigated.   Accordingly, the trial court properly granted

summary judgment in favor of Bayview and against St. Cyr.

       {¶44} St. Cyr’s assignments of error are overruled.

       {¶45} Judgment affirmed.
       It is ordered that appellee recover of appellants 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
