[Cite as Wells Fargo Bank, N.A. v. Roehrenbeck, 2013-Ohio-5498.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



WELLS FARGO BANK, N.A.                                   JUDGES:
                                                         Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                               Hon. John W. Wise, J.
                                                         Hon. Patricia A. Delaney, J.
-vs-
                                                         Case No. 13 CA 29
MARY K. ROEHRENBECK

        Defendant-Appellant                              OPINION




CHARACTER OF PROCEEDING:                             Civil Appeal from the Court of Common
                                                     Pleas, Case No. 12 CV 0779


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              December 13, 2013



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

SCOTT A. KING                                        MARY K. ROEHRENBECK
THOMPSON HINE LLP                                    PRO SE
10050 Innovation Drive, Suite 400                    264 Isaac Tharp Street
Miamisburg, Ohio 45401                               Pataskala, Ohio 43062

TERRANCE A. MEBANE
THOMPSON HINE LLP
41 South High Street, Suite 1700
Columbus, Ohio 43215
Licking County, Case No. 13 CA 29                                                      2

Wise, J.

      {¶1}     Defendant-Appellant Mary K. Roehrenbeck appeals the judgment of the

Licking County Court of Common Pleas granting Plaintiff-Appellee Wells Fargo Bank,

NA’s motion for summary judgment.

                            STATEMENT OF THE CASE AND FACTS

      {¶2}     The facts in this case are as follows:

      {¶3}     On October 24, 2006, Appellant Mary K. Roehrenbeck executed a

promissory note (the "Note") in the principal amount of $217,183.00, plus interest at the

rate of 5.5% per year, payable to Beazer Mortgage Corporation ("Beazer Mortgage").

Beazer Mortgage specially indorsed the Note to American Brokers Conduit ("American

Brokers"), who specially indorsed it to Wells Fargo, who indorsed it in blank. Wells

Fargo has had possession of the original Note since 2006.

      {¶4}     On October 24, 2006, to secure payment of the Note, Appellant

Roehrenbeck also executed an open-end mortgage against the Property in favor of

Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Beazer

Mortgage, its successors and assigns.

      {¶5}     On March 7, 2012, MERS executed a notice of Assignment of Mortgage to

Wells Fargo.

      {¶6}     On June 6, 2012, Wells Fargo commenced this action to recover the

balance due on the Note and to foreclose the Mortgage.

      {¶7}     On July 6, 2012, Appellant Roehrenbeck filed an untimely answer.

      {¶8}     On July 10, 2012, Wells Fargo filed a motion for default judgment.
Licking County, Case No. 13 CA 29                                                            3


         {¶9}   On July 12, 2012, the trial court granted a judgment in favor of Wells

Fargo.

         {¶10} On August 6, 2012, Appellant Roehrenbeck filed a notice of appeal to this

Court, Case No. 2012 CA 00068.

         {¶11} On August 20, 2012, the parties filed a joint motion to dismiss the appeal.

         {¶12} On September 4, 2012, this Court entered an agreed order dismissing the

appeal.

         {¶13} On September 13, 2012, Appellant Roehrenbeck filed a motion for leave

to file an amended Answer.

         {¶14} On September 17, 2012, the trial court issued an Order vacating the

judgment.

         {¶15} On October 24, 2012, the trial court held a hearing on Appellant

Roehrenbeck's motion for leave. That same day, the trial court issued an Entry granting

Appellant Roehrenbeck leave to file an amended answer.

         {¶16} On November 13, 2012, Appellant Roehrenbeck filed her Amended

Answer and Counterclaim. The Counterclaim alleges that in January, 2007, Wells Fargo

began sending requests to Appellant with knowledge that it was not the "owner" of the

Note when it attempted to collect those payments. Appellant claims that Wells Fargo

misled her into believing that it was entitled to do so, which allegedly violated a fiduciary

duty that she claims Wells Fargo owed to her. The basis of the Counterclaim is that

Wells Fargo began collecting payments prior to MERS executing the notice of

Assignment of Mortgage, and that this was fraudulent. The Counterclaim asserts two

claims: (1) fraud; and (2) punitive damages.
Licking County, Case No. 13 CA 29                                                       4


      {¶17} On December 12, 2012, Wells Fargo filed a Motion to Dismiss the

Counterclaim.

      {¶18} On January 7, 2013, Appellant Roehrenbeck filed her "Objection to Motion

to Dismiss."

      {¶19} On January 14, 2013, the trial court issued a Judgment Entry, finding that

Wells Fargo's Motion "presents matters outside the pleadings," stating that the court

would treat the Motion as one for summary judgment, and instructing Wells Fargo to file

a supplemental memorandum and any Rule 56 evidence.

      {¶20} On February 15, 2013, Wells Fargo filed a motion for extension of time to

file its supplemental memorandum.

      {¶21} On February 28, 2013, Wells Fargo filed a Supplemental Memorandum.

      {¶22} On March 11, 2013, Appellant Roehrenbeck filed a memorandum contra

to the Supplemental Memorandum.

      {¶23} On March 12, 2013, the trial Court issued a Memorandum of Decision,

and on March 21, 2013, a Judgment Entry, dismissing the Counterclaim. The Judgment

Entry also granted Wells Fargo 75 days to file a dispositive motion on the Complaint.

      {¶24} Defendant-Appellant now appeals, assigning the following errors for

review:

      {¶25} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT

(SIC) TO PLAINTIFF, WELLS FARGO, WITHOUT ALLOWING DEFENDANT PROPER

TIME TO FILE A MEMORANDUM CONTRA TO PLAINTIFF'S SUPPLEMENTAL

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS COUNTERCLAIM.
Licking County, Case No. 13 CA 29                                                        5


       {¶26} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT

(SIC) TO PLAINTIFF, WELLS FARGO, WHEN THE BASIS OF PLAINTIFF'S

REASONING WAS INCORRECTLY FOCUSED ON UCC ARTICLE 3, FOR

NEGOTIABLE INSTRUMENTS, INSTEAD OF UCC ARTICLE 9, FOR SECURITY

INSTRUMENTS, AS A MATTER OF LAW.

       {¶27} “III.   THE   TRIAL     COURT      ERRED      IN   GRANTING       SUMMARY

JUDGEMENT (SIC) TO PLAINTIFF, WELLS FARGO, WHEN THE AFFIDAVIT

PROVIDED DID NOT STATE A VALID DATE AS TO WHEN THE NOTE WAS

TRANSFERRED OR ASSIGNED TO PLAINTIFF

       {¶28} “IV.    THE   TRIAL     COURT      ERRED     IN    GRANTING       SUMMARY

JUDGEMENT (SIC) TO PLAINTIFF, WELLS FARGO, BECAUSE REASONABLE

MINDS CANNOT COME TO BUT ONE CONCLUSION.”

       {¶29} “Summary Judgment Standard”

       {¶30} 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. Civ.R. 56(C) provides,

in pertinent part:

       {¶31} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case, 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. * * * A summary judgment shall not be

rendered unless it appears from such evidence or stipulation and only therefrom, that
Licking County, Case No. 13 CA 29                                                         6


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, such party being

entitled to have the evidence or stipulation construed most strongly in his favor.”

         {¶32} Pursuant to the above rule, a trial court may not enter a 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 evidence which demonstrates the non-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 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.

         {¶33} It is based upon this standard that we review appellant’s assignments of

error.

                                                 I.

         {¶34} In her First Assignment of Error, Appellant argues that the trial court erred

in granting Plaintiff-Appellee an extension of time to file its supplemental memorandum

in support of its motion without granting Defendant-Appellant an extension of time to

respond.
Licking County, Case No. 13 CA 29                                                         7


       {¶35} Upon review, we find that when the trial court converted Appellee’s 12(B)

motion to dismiss to a Civ.R. 56 motion for summary judgment, the trial court set the

following briefing schedule:

       {¶36} “Plaintiff shall file a supplemental motion and/or any Civ.R. 56 materials in

support of its motion on or before February 15, 2013. Defendant shall file a

memorandum contra and any supporting materials on or before March 1, 2013. Plaintiff

may file a reply on or before March 8, 2013. A non-oral hearing shall be set for March

11, 2013.” (See Judgment Entry, Jan. 14, 2013).

       {¶37} The following day, February 15, 2013, Appellee moved the trial court for a

fourteen (14) day extension of time to file its supplemental memorandum in support,

which the trial court granted the same day.

       {¶38} Appellee filed its supplemental memorandum on February 28, 2013, and

Appellant filed her Memorandum Contra on March 11, 2013. The trial court did not issue

its decision until March 12, 2013.

       {¶39} As Appellant did not request additional time to respond and did, in fact, file

a response in this matter prior to the trial court’s ruling, we find Appellant’s argument to

be without merit.

       {¶40} Appellant’s First Assignment of Error is overruled.

                                              II., III., IV.

       {¶41} As Appellant’s remaining three Assignments of Error challenge the trial

court’s decision granting Appellee’s motion to dismiss/motion for summary judgment,

we shall address them together.
Licking County, Case No. 13 CA 29                                                          8


       {¶42} Appellant’s counterclaim in this matter contained a claim for fraud,

claiming that Wells Fargo fraudulently represented that it was the person entitled to

collect under the Note. Appellant herein argues that Appellee’s reliance on UCC Article

3 was misplaced and that the affidavit in support of its motion failed to provide the date

of assignment of the note.

       {¶43} Upon review, we find that the promissory note in question is a “negotiable

instrument” as defined in R.C. 1303.03(A), which states:

       {¶44} “(A) Except as provided in divisions (C) and (D) of this section, “negotiable

instrument” means an unconditional promise or order to pay a fixed amount of money,

with or without interest or other charges described in the promise or order, if it meets all

of the following requirements:

       {¶45} “(1) It is payable to bearer or to order at the time it is issued or first comes

into possession of a holder.

       {¶46} “(2) It is payable on demand or at a definite time.

       {¶47} “(3) It does not state any other undertaking or instruction by the person

promising or ordering payment to do any act in addition to the payment of money, …”

       {¶48} Ohio's version of the Uniform Commercial Code governs who may enforce

a note. R.C. §1301.01 et seq. Article 3 of the UCC governs the creation, transfer and

enforceability of negotiable instruments, including promissory notes secured by

mortgages on real estate. Fed. Land Bank of Louisville v. Taggart, 31 Ohio St.3d 8, 10,

508 N.E.2d 152 (1987).1



1
 R.C. §1301.01 was repealed by Am.H.B. No. 9, 2011 Ohio Laws File 9, effective June
29, 2011. That act amended the provisions of R.C. §1301.01 and renumbered that
section so that it now appears at R.C. 1301.201. Because R.C. §1301.201 only applies
Licking County, Case No. 13 CA 29                                                      9


      {¶49} Under R.C. §1301.01, “holder” means either of the following: “(a) if the

instrument is payable to bearer, a person who is in possession of the instrument; “(b) if

the instrument is payable to an identified person, the identified person when in

possession of the instrument.”

      {¶50} As set forth above, Appellant executed a promissory note payable to

Beazer Mortgage, Beazer specially indorsed the Note to American Brokers Conduit,

who specially indorsed it to Wells Fargo, who indorsed it in blank.2 Wells Fargo has had

possession of the original Note since 2006. Wells Fargo is therefore the holder of the

Note which entitles it to enforce the Mortgage securing its repayment.

      {¶51} Further, we find no requirement that indorsements on negotiable

instruments be dated.

      {¶52} Based on the foregoing, we find that the trial court did not err in granting

summary judgment in favor of Appellee and dismissing Appellant’s counterclaim in this

matter.




to transactions entered on or after June 29, 2011, we apply R.C. §1301.01 to this
appeal.
2
  R.C. 1303.25(B) states: “ ‘Blank indorsement’ means an instrument that is made by
the holder of the instrument and that is not a special indorsement. When an instrument
is indorsed in blank, the instrument becomes payable to bearer and may be negotiated
by transfer of possession alone until specially indorsed.”
Licking County, Case No. 13 CA 29                                                 10


      {¶53} Appellant’s Second, Third and Fourth Assignments of Error are overruled.

      {¶54} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed.


By: Wise, J.

Farmer, P. J., and

Delaney, J., concur.



                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. SHEILA G. FARMER


                                          ___________________________________
                                          HON. PATRICIA A. DELANEY

JWW/d 1120
Licking County, Case No. 13 CA 29                                             11


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




WELLS FARGO BANK, N.A.                     :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
MARY K. ROEHRENBECK                        :
                                           :
       Defendant-Appellant                 :         Case No. 13 CA 29




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                           ___________________________________
                                           HON. JOHN W. WISE


                                           ___________________________________
                                           HON. SHEILA G. FARMER


                                           ___________________________________
                                           HON. PATRICIA A. DELANEY
