[Cite as CitiMortgage, Inc. v. Uhl, 2014-Ohio-2868.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

CITIMORTGAGE, INC.                                          C.A. No.   13CA0014

        Appellee

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
JENNY A. UHL, et al.                                        COURT OF COMMON PLEAS
                                                            COUNTY OF WAYNE, OHIO
        Appellant                                           CASE No.   11 CV 0365

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2014



        CARR, Judge.

        {¶1}     Appellant Jenny Uhl appeals the judgment of the Wayne County Court of

Common Pleas that granted summary judgment in favor of appellee CitiMortgage, Inc. This

Court reverses and remands.

                                                       I.

        {¶2}     On June 15, 2011, CitiMortgage filed a complaint in foreclosure against Craig and

Jenny Uhl, husband and wife, with regard to property located at 117 West Schultz Street, in

Dalton, Ohio. CitiMortgage claimed it was the holder of a note which was unavailable at that

time, and that the note was secured by a mortgage which had been assigned to it. CitiMortgage

conceded that Craig was immune from personal liability on the note by virtue of a bankruptcy.

Pursuant to information submitted by Jenny, and thereafter acknowledged by CitiMortgage,

Craig had died in 2008. CitiMortgage did not amend its complaint to add Craig’s estate as a

party. Attached to CitiMortgage’s complaint was a document purporting to assign the mortgage
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from Mortgage Electronic Registration Systems, Inc., as nominee for 1st Mariner Bank, to

CitiMortgage on May 4, 2011. The purported assignment bears no indicia of having been

recorded.

       {¶3}    The parties stipulated that Jenny had leave to plead until November 1, 2011. On

that day, Jenny filed a motion to dismiss pursuant to Civ.R. 12(B)(6), alleging that CitiMortgage

lacked standing to file the complaint. CitiMortgage opposed the motion to dismiss and further

filed a copy of the purported note, executed solely by Craig. The trial court summarily denied

Jenny’s motion to dismiss without analysis. Thereafter, Jenny filed an answer to the complaint,

raising CitiMortgage’s lack of standing as one of her affirmative defenses. On January 13, 2012,

CitiMortgage filed a notice of filing of assignment of mortgage, executed December 8, 2011, and

bearing indicia of having been filed with the Wayne County Recorder for record on December

22, 2011.

       {¶4}    The case lay dormant until May 2, 2012, when the trial court apparently ordered

CitiMortgage to take some action or face dismissal of the complaint for failure to prosecute.1

CitiMortgage filed a motion for summary judgment on May 29, 2012. Jenny moved again to

dismiss the action and also responded in opposition to the motion for summary judgment.

CitiMortgage later filed a reply in support of its motion for summary judgment. On February 21,

2013, the trial court issued an in rem judgment and decree in foreclosure after granting

CitiMortgage’s motion for summary judgment and denying Jenny’s motion to dismiss. Jenny

filed a notice of appeal on April 2, 2013.



       1
         While the order is not present in the record, both parties filed replies to the trial court’s
May 2, 2012 order. CitiMortgage explained its delay in filing a motion for summary judgment
and requested leave to file such a motion within 60 days. Jenny replied and requested that the
court dismiss the complaint for want of prosecution.
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       {¶5}     As an initial matter, this Court concludes that Jenny’s appeal is timely because

there is no indication in the record that the clerk of court served the parties with notice of the

judgment or entered its date of entry on the docket; accordingly, the time for appeal was tolled.

See Malmon-Berg v. Malmon-Berg, 9th Dist. Wayne No. 13CA0005, 2014-Ohio-1784, ¶ 10-12.

Jenny raises one assignment of error for review.

                                               II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT AWARDED SUMMARY
       JUDGMENT TO PLAINTIFF-APPELLEE WHEN THERE IS NO EVIDENCE
       IN THE RECORD THAT THE PLAINTIFF-APPELLEE IS OR WAS THE
       HOLDER OF EITHER THE NOTE OR MORTGAGE.

       {¶6}     Jenny argues that the trial court erred by granting summary judgment in favor of

CitiMortgage. Instead, she argues that the trial court should have granted her motion to dismiss

the foreclosure complaint because CitiMortgage lacked standing to initiate the action. This

Court agrees.

       {¶7}     This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983).

       {¶8}     Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (1) No genuine issue as to any material fact remains 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., 50 Ohio St.2d 317, 327 (1977).
                                                4


       {¶9}    To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that 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.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d

447, 449 (1996).

       {¶10} The non-moving party’s reciprocal burden does not arise until after the moving

party has met its initial evidentiary burden. To do so, the moving party must set forth evidence

of the limited types enumerated in Civ.R. 56(C), specifically, “the pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact[.]” Civ.R. 56(C) further provides that “[n]o evidence or stipulation may be

considered except as stated in this rule.”

       {¶11} Standing to sue requires that a party have a sufficient personal stake in the

outcome of the case. Cleveland v. Shaker Hts., 30 Ohio St.3d 49, 51 (1987). The Ohio Supreme

Court addressed the issue of standing within the context of foreclosure actions in Fed. Home

Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. While recognizing that

standing is necessary to invoke the jurisdiction of the trial court, the Schwartzwald court held

that a lack of standing to sue cannot be cured after commencement of the action, but rather must

exist at the time the complaint is filed. Id. at ¶ 38-39. Where a plaintiff in a foreclosure action
                                                 5


lacks standing to sue at the time of the filing of the complaint, the proper remedy is dismissal of

the complaint. Id. at ¶ 42. This Court has recognized that the plaintiff in a foreclosure action

must “be holder of the [n]ote and the [m]ortgage at the time it initiated [the] action [in] order to

have standing.” (Emphasis in original) BAC Home Loan Serv., LP v. McFerren, 9th Dist.

Summit No. 26384, 2013-Ohio-3228, ¶ 13.

       {¶12} In this case, CitiMortgage argued in its motion for summary judgment that it

became the holder of the mortgage by virtue of an assignment from Mortgage Electronic

Registration Systems, Inc. (“MERS”), as nominee for 1st Mariner Bank, which was recorded on

December 22, 2011. It did not refer to the purported assignment attached to its complaint.

CitiMortgage filed the affidavit of Stephanie Green contemporaneously with its motion for

summary judgment. Ms. Green averred that she was familiar with the documents relevant to this

matter. The record further contains an assignment of a mortgage regarding the subject property

from MERS, as nominee for 1st Mariner Bank, to CitiMortgage, which was executed on

December 8, 2011, and recorded on December 22, 2011. CitiMortgage relied in its motion for

summary judgment solely on that assignment to establish that it was the holder of the mortgage.

CitiMortgage filed its complaint, however, on June 15, 2011, months in advance of having been

assigned the mortgage. Accordingly, CitiMortgage failed to provide any evidence pursuant to

Civ.R. 56(C) to demonstrate that it had standing to initiate this foreclosure action. Because

CitiMortgage failed to invoke the jurisdiction of the common pleas court, the trial court erred by

granting summary judgment in CitiMortgage’s favor and by denying Jenny’s motion to dismiss

for lack of standing. Jenny’s assignment of error is sustained.
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                                                III.

       {¶13} Jenny’s sole assignment of error is sustained. The judgment of the Wayne County

Court of Common Pleas is reversed and the cause remanded for further proceedings consistent

with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       DONNA J. CARR
                                                       FOR THE COURT



BELFANCE, P. J.
HENSAL, J.
CONCUR.
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APPEARANCES:

JAMES R. DOUGLASS, Attorney at Law, for Appellant.

THOMAS L. HENDERSON, Attorney at Law, for Appellee.
