[Cite as Bank of New York Mellon v. Crates, 2016-Ohio-2700.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


THE BANK OF NEW YORK MELLON                         :          JUDGES:
fka THE BANK OF NEW YORK,                           :          Hon. Sheila G. Farmer, P.J.
SUCCESSOR TO J.P. MORGAN                            :          Hon. William B. Hoffman, J.
CHASE BANK N.A., AS TRUSTEE FOR                     :          Hon. Craig R. Baldwin, J.
CENTEX HOME EQUITY LOAN TRUST                       :
2003-A
                                                    :
        Plaintiff - Appellee                        :
                                                    :
-vs-                                                :          Case No. 15-CA-70
                                                    :
JAMES F. CRATES, et al.,                            :
                                                    :
        Defendants - Appellants                     :          OPINION



CHARACTER OF PROCEEDING:                                       Appeal from the Licking County
                                                               Court of Common Pleas, Case No.
                                                               2015 CV 00138



JUDGMENT:                                                      Affirmed



DATE OF JUDGMENT:                                              April 21, 2016



APPEARANCES:

For Plaintiff-Appellee                                         For Defendants-Appellants

JOHN B. KOPF                                                   MATTHEW J. KUNSMAN
DAVID J. CAREY                                                 Fisher, Skrobot & Sheraw, LLC
Thompson Hine LLP                                              471 East Broad Street, Suite 1810
41 South High Street, Suite 1700                               Columbus, Ohio 43215
Columbus, Ohio 43215
Licking County, Case No. 15-CA-70                                                        2




Baldwin, J.

      {¶1}    Appellants James F. Crates and Stephanie Gussler appeal a summary

judgment and decree of foreclosure issued by the Licking County Common Pleas in favor

of appellee The Bank of New York Mellon fka The Bank of New York, Successor to J.P.

Morgan Chase Bank N.A., as Trustee for Centex Home Equity Loan Trust 2003-A.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellant Crates executed a promissory note on November 25, 2002, in the

principal amount of $184,000.00, payable to Centex Home Equity Company. By allonge

dated November 25, 2002, Centex indorsed the note in blank. To secure the note,

appellants executed a mortgage to Centex against property located in Granville, Ohio.

       {¶3}   Centex later changed its name to Nationstar Mortgage. Crates signed a

modification agreement with Nationstar on January 21, 2010. The loan had been in

default, and the modification brought it current. The modification changed the principal

balance and the interest rate, and lowered the monthly payment effective March 1, 2010.

Prior to the modification, the last payment made by Crates was applied to the June, 2008

payment.

       {¶4}   After the loan modification, the account was current for some time, although

some of the payments were late or made with insufficient funds. On July 16, 2013,

Nationstar sent Crates a letter advising him that he was in default and that he had a right

to cure or reinstate the loan. He did not cure the default. On January 14, 2015, Centex

assigned the mortgage to appellee.
Licking County, Case No. 15-CA-70                                                     3


      {¶5}   Appellee filed the instant complaint in foreclosure on February 13, 2015.

Attached to the complaint was a copy of the promissory note, including an indorsement

in blank via allonge; a copy of the loan modification; a copy of the recorded mortgage

executed by appellants; and a copy of the assignment of the mortgage to appellee.

Appellants filed an answer claiming that appellee lacked standing and that the claim was

barred by res judicata.

      {¶6}   Appellee moved for summary judgment on May 22, 2015. Appellants filed

a response and a counter-motion for summary judgment on July 16, 2015, arguing that

appellee did not have standing because it did not have a possessory interest in the note

on the date the complaint was filed. The court granted appellee’s motion for summary

judgment and issued a decree of foreclosure.

      {¶7}   Appellant assigns two errors:

      {¶8}   “I.   THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO APPELLEE AS ITS CLAIMS ARE BARRED BY THE DOCTRINE OF RES JUDICATA

ON THE BASIS THAT APPELLEE, OR ITS ASSIGNORS, HAVE TWICE PREVIOUSLY

VOLUNTARILY DISMISSED THIS MATTER WHICH ACTED AS AN ADJUDICATION

ON THE MERITS.

      {¶9}   “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO APPELLEE AS IT FAILED TO PROVE IT WAS ENTITLED TO ENFORCE THE NOTE

AT THE TIME THE COMPLAINT WAS FILED AND DID NOT PROVIDE ANY EVIDENCE

OF ITS POSSESSION OF THE NOTE UNTIL IT SUBMITTED AN AFFIDAVIT IN

SUPPORT OF ITS REPLY BRIEF.”
Licking County, Case No. 15-CA-70                                                              4


       {¶10} Both assignments of error challenge the court’s ruling on summary

judgment. 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., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R.

56(C) which provides in pertinent part:

              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. A summary

       judgment shall not be rendered unless it appears from the evidence or

       stipulation, and only from the evidence or stipulation, that reasonable minds

       can come to but one conclusion and that conclusion is adverse to the party

       against whom the motion for summary judgment is made, that party being

       entitled to have the evidence or stipulation construed most strongly in the

       party’s favor.

       {¶11} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. The party moving for summary judgment

bears the initial burden of informing the trial court of the basis for its motion and identifying

those portions of the record that demonstrate the absence of a genuine issue of material

fact. The moving party may not make a conclusory assertion that the non-moving party

has no evidence to prove its case. The moving party must specifically point to some
Licking County, Case No. 15-CA-70                                                         5


evidence which demonstrates that the moving party cannot support its claim. If the

moving party satisfies this requirement, the burden shifts to the non-moving party to set

forth specific facts demonstrating that there is a genuine issue of material fact for trial.

Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio

St.3d 280, 1996-Ohio-107.



                                                I.

       {¶12} In their first assignment of error, appellants argue that the trial court erred

in granting appellee’s motion for summary judgment, as the complaint is barred by the

doctrine of res judicata because appellee or its assignors have twice previously voluntarily

dismissed this matter, which acted as an adjudication on the merits. In support of this

claim, appellants have attached the dockets of the prior cases to their brief. However,

appellants did not submit these dockets to the trial court, and the dockets are not a part

of the record before this Court on appeal.

       {¶13} Further, while appellants raised the defense of res judicata in their answer

to the complaint, appellants did not argue that the action was barred by res judicata based

upon the two-dismissal rule in opposition to summary judgment, nor did appellants raise

this claim in their counter-motion for summary judgment. Although pled in an answer, an

affirmative defense is waived by failing to raise it during summary judgment proceedings.

Goodman v. Cleland, 4th Dist. Highland No. 12CA4, 2012-Ohio-5044, ¶23; Polster v.

Webb, 8th Dist. Cuyahoga No. 77523, 2001 WL 703875 (June 21, 2001).

       {¶14} The first assignment of error is overruled.
Licking County, Case No. 15-CA-70                                                           6




                                                   II.

          {¶15} In their second assignment of error, appellants argue that appellee was not

entitled to summary judgment because appellee did not submit evidence of possession

of the note with its original motion for summary judgment, but only provided such evidence

in an affidavit attached to the reply to appellants’ motion for summary judgment.

          {¶16} In support of its motion for summary judgment, appellee attached the

affidavit of Jesslyn Williams, a document execution specialist for Nationstar, which

maintained the records for the loan secured by the mortgage being foreclosed in this

action.     She averred that the promissory note had been duly indorsed, but did not

expressly set forth a possessory interest in the note. She averred that the note was

secured by the mortgage. She also averred that the promissory note, the mortgage, and

the assignment of the mortgage to appellee, attached to the affidavit, were true and

accurate copies of the documents electronically stored in Nationstar’s business records.

          {¶17}   In response, appellants filed a memorandum in opposition to appellee’s

motion for summary judgment and a counter-motion for summary judgment, arguing that

while the affidavit appeared to establish that appellee was the holder of the mortgage, the

affidavit did not establish a possessory interest in the note.

          {¶18} Appellee then filed a reply. Attached to the reply was the affidavit of Albert

Nguende, a document execution specialist for Nationstar, averring that appellee was in

possession of the original note when it filed the complaint on February 13, 2015, and

continued to maintain possession of the note. The affidavit stated that the note contains
Licking County, Case No. 15-CA-70                                                               7


an indorsement executed in blank by Centex, and a true and exact copy of the note was

attached to the complaint as Exhibit A.

       {¶19} Appellants rely on this Court’s opinion in U.S. Bank National Association v.

Green Meadow SWS, 5th Dist. Delaware No. 12 CAE 09 0069, 2013-Ohio-2002, in

support of their claim that submitting new evidence in a reply to summary judgment

constitutes “summary judgment by ambush.” However, Green Meadow is distinguishable

from the instant case. In that case, the party submitted a new argument in support of

summary judgment in their reply brief, and the trial court denied the opposing party the

opportunity to file a surreply. In finding error in the trial court’s denial of the motion to file

a surrply, we held as follows:

               While U.S. Bank argues it was merely responding to the arguments

       of Green Meadow, U.S. Bank in its motion for summary judgment, pursuant

       to Civ.R. 56, “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.” “Reply briefs are restricted to matters in

       rebuttal, not new arguments. The problem with allowing a new argument to

       be asserted in a reply in support of the original motion is that it does not

       give the party opposing the motion the opportunity to respond. Buren v.

       Karrington Health, Inc., 10th Dist. No. 00AP–1414, 2002–Ohio–206.”

       Lawson v. Mahoning Cnty. Mental Health Bd., 7th Dist. No. 10 MA 23,

       2010–Ohio–6389, ¶ 50. Allowing a new argument to be asserted in a reply

       has been characterized as “summary judgment by ambush.” Intl. Fid. Ins.
Licking County, Case No. 15-CA-70                                                       8

      Co. v. TC Architects, Inc., 9th Dist. No. 23112, 2006–Ohio–4869, ¶ 11.

      “When a new argument is raised in a reply or supplemental motion for

      summary judgment, the proper procedure is to strike the reply or

      supplemental motion or, alternatively, to allow the opposing party to file a

      surreply. Smith [v. Ray Esser & Sons, Inc. 9th Dist. No. 10CA009798, 2011–

      Ohio–1529] at ¶ 15, citing Lawson at ¶ 50–51.” Baker v. Coast to Coast

      Manpower, L.L.C., 3rd Dist. No. 5–11–36, 2012–Ohio–2840, ¶ 35.

      {¶20} Id. at ¶37.

      {¶21} In contrast, in the instant case, appellee did not assert a new argument in

its reply; rather, the affidavit clarified the issue of possession of the note. Further,

appellants had moved for summary judgment on the basis that appellee did not have

possession of the note at the time the complaint was filed. The Nguende affidavit was in

direct response to appellants’ motion for summary judgment.

      {¶22} Appellants did not attempt to strike the affidavit, nor did they seek leave to

file a surreply. Even if the Nguende affidavit could be construed as raising a new

argument, appellant has waived any error by failing to move to strike the affidavit or

seeking leave to file a surreply. Lawson v. Mahoning Cty. Mental Health Bd., 7th Dist.

Mahoning No. 10 MA 23, 2010-Ohio-6389, ¶51.
Licking County, Case No. 15-CA-70                                                 9


      {¶23} The second assignment of error is overruled. The judgment of the Licking

County Common Pleas Court is affirmed. Costs are assessed to appellants.

By: Baldwin, J.

Farmer, P.J. and

Hoffman, J. concur.
