[Cite as Bank of New York Mellon v. Putman, 2014-Ohio-1796.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                          BUTLER COUNTY




BANK OF NEW YORK MELLON,                             :

        Plaintiff-Appellee,                          :         CASE NO. CA2012-12-267

                                                     :              OPINION
   - vs -                                                            4/28/2014
                                                     :

MARYANN J. PUTMAN, et al.,                           :

        Defendants-Appellants.                       :



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                               Case No. CV12-02-0551



Manley Deas Kochalski, LLC, Michael Carleton, P.O. Box 165028, Columbus, Ohio 43216-
5028, for plaintiff-appellee

Dann, Doberdruk & Harshman, Marc Dann, Grace Doberdruk, 4600 Prospect Avenue,
Cleveland, Ohio 44103, for defendants-appellants, Maryann J. Putman and James Putman

Sara Hirka, 300 High Street, Suite 704, P.O. Box 747, Hamilton, Ohio 45012, for defendant,
Charleston Wood Homeowners Association



        S. POWELL, J.

        {¶ 1} Defendants-appellants, Maryann J. Putman and James Putman, appeal from

the decision of the Butler County Court of Common Pleas granting summary judgment to

plaintiff-appellee, Bank of New York Mellon, f/k/a Bank of New York, as Trustee for the

Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2006-6 Mortgage
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Pass-Through Certificates, Series 2006-6 (Bank of New York Mellon). The Putmans also

appeal from the trial court's decision denying their motion to strike the affidavit of Suzanne

Szymoniak. For the reasons outlined below, we affirm.

       {¶ 2} On January 26, 2006, Mrs. Putman executed a promissory note in favor of

Countrywide Home Loans, Inc., in the amount of $540,000 for the purchase of a home

located at 5543 Charleston Woods Drive, Liberty Township, Butler County, Ohio (Property).

The note was secured by a mortgage that designated the Putmans as the borrowers,

Countrywide Home Loans as the lender, and Mortgage Electronic Registration Systems, Inc.

(MERS) as the mortgagee. According to the mortgage documents, MERS was acting as a

nominee for Countrywide Home Loans, as well as any of its successors and assigns. The

Putmans both initialed and signed the mortgage documents.               The mortgage was

subsequently recorded on February 6, 2006.

       {¶ 3} Approximately five years later, the Putmans defaulted on the mortgage and a

letter noticing that default was sent to the Putmans on May 17, 2011. Thereafter, on

November 28, 2011, MERS assigned the mortgage to Bank of New York Mellon. The

assignment was then recorded on December 1, 2011. On February 8, 2012, Bank of New

York Mellon filed a complaint for foreclosure on the Property. Attached to the complaint was

the note signed by Mrs. Putman that was indorsed in blank by David A. Spector, the

managing director of Countrywide Home Loans. The assignment of the mortgage to Bank of

New York Mellon, as well as a copy of the mortgage itself, was also attached to the

complaint.

       {¶ 4} On October 19, 2012, Bank of New York Mellon filed a motion for summary

judgment. Included with the motion was an affidavit from Suzanne Szymoniak, an officer of

Bank of America, N.A., the servicing agent for the mortgage, as well as a copy of both the

note and the mortgage. Szymoniak's affidavit also included a copy of the May 17, 2011 letter
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sent to the Putmans noticing their default on the mortgage. The Putmans then filed a motion

in opposition to Bank of New York Mellon's motion for summary judgment and a motion to

strike Szymoniak's affidavit. After holding a hearing on the matter, the trial court denied the

Putmans' motion to strike and granted summary judgment in favor of Bank of New York

Mellon.

       {¶ 5} The Putmans now appeal from the trial court's decisions denying their motion to

strike Szymoniak's affidavit and granting summary judgment to Bank of New York Mellon,

raising two assignments of error for review.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT'S MOTION TO

STRIKE THE AFFIDAVIT OF SUZANNE SZYMONIAK.

       {¶ 8} In their first assignment of error, the Putmans argue the trial court erred by

denying their motion to strike Szymoniak's affidavit attached to Bank of New York Mellon's

motion for summary judgment. We disagree.

       {¶ 9} The determination of a motion to strike is within the trial court's broad

discretion. Ireton v. JTD Realty Invests., L.L.C., 12th Dist. Clermont No. CA2010-04-023,

2011-Ohio-670, ¶ 19. A trial court's ruling on a motion to strike will be not reversed on appeal

absent an abuse of that discretion. Wells Fargo v. Smith, 12th Dist. Brown No. CA2012-04-

006, 2013-Ohio-855, ¶ 13, citing State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-

Ohio-4699, ¶ 13. A decision constitutes an abuse of discretion when it is unreasonable,

arbitrary, or unconscionable. State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-

5350, ¶ 11.

       {¶ 10} The Putmans initially argue the trial court erred by failing to strike Szymoniak's

affidavit because Bank of New York Mellon did not attach any payment records to the

affidavit evidencing their default on the mortgage. In support of this claim, the Putmans cite
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our decision in Third Federal S. & L. Assn. of Cleveland v. Farno, 12th Dist. Warren No.

CA2012-04-028, 2012-Ohio-5245, wherein this court stated, in pertinent part, the following:

              We sustain Farno's first assignment of error as paragraphs five,
              six, and seven of Third Federal's affidavit should have been
              stricken because its summary judgment motion was not
              supported as provided in Civ.R. 56(E), when no documentation
              referenced in those portions of the affidavit were attached to or
              served with the affidavit to show default of payment and payment
              history.

              ***

              We do not suggest that Third Federal was required to attach
              every document in its file on Farno's note, but Third Federal
              needed to attach or serve with its affidavit some document or
              documents material to the issues in this case, to wit, the default
              in payment and applicable portions of the payment history.

(Internal citations omitted.) Id. at ¶ 10 and 11.

       {¶ 11} According to the Putmans, our holding in Farno stands for the proposition that

the inclusion of payment records is a mandatory component of an affidavit in support of a

motion for summary judgment in a foreclosure action. Such an interpretation, however,

extends our holding in Farno well-beyond its intended boundaries. Rather, our holding in

Farno merely stands for the general principle that "[w]hen an affiant relies on documents in

his affidavit and does not attach those documents, the portions of the affidavit that reference

those documents must be stricken." Wells Fargo v. Smith, 12th Dist. Brown No. CA2012-04-

006, 2013-Ohio-855, ¶ 17, citing Farno at ¶ 10. A review of Szymoniak's affidavit reveals that

this simply did not happen here. This is particularly true given that the May 17, 2011 letter

that specifically notified the Putmans they were in default on the mortgage was included in

Szymoniak's affidavit, as well as the fact that the Putmans failed to provide any evidence to

dispute Szymoniak's averments contained in her affidavit regarding the amount they owed on

the loan. The Putmans' first argument is therefore without merit and overruled.

       {¶ 12} Next, the Putmans argue the trial court erred by failing to strike Szymoniak's
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affidavit because she was an officer of Bank of America, N.A., the servicing agent for the

mortgage, and not an employee for Bank of New York Mellon. However, the Putmans have

not cited to any authority holding as much, nor has our own research uncovered any case

law that would support such a contention. Rather, a review of the case law reveals that

affidavits from servicing agents are routinely used to support a motion for summary judgment

in a foreclosure action. See U.S. Bank, Natl. Assn. v. Zokle, 6th Dist. Erie No. E-13-033,

2014-Ohio-636, ¶ 24 (stating "[c]ourts have in many cases allowed a representative of a

bank's loan servicer to establish that the bank holds the note at issue"); Regions Bank v.

Seimer, 10th Dist. Franklin No. 13AP-542, 2014-Ohio-95, ¶ 19 (noting "[s]everal appellate

courts have found that, in a foreclosure action, the affidavit of a loan servicing agent

employee with personal knowledge, provides sufficient evidentiary support for a summary

judgment in favor of the mortgagee"); see, e.g., Wells Fargo Bank, N.A. v. Dawson, 5th Dist.

Stark No. 2013CA00095, 2014-Ohio-269, ¶ 19-22 (finding affidavit from bank's loan servicing

agent was proper summary judgment evidence in foreclosure action); Everbank v.

Vanarnheim, 3d Dist. Union No. 14-13-02, 2013-Ohio-3872, ¶ 39 (accepting as sufficient an

affidavit from vice-president of bank's loan servicer averring that the bank was in possession

of original promissory note).

       {¶ 13} This court has also found affidavits from a loan servicing agent are proper

summary judgment evidence in foreclosure actions. See JPMorgan Chase Bank, NA v.

Carroll, 12th Dist. Clinton No. CA2013-04-010, 2013-Ohio-5273, ¶ 25 (finding affidavit from

servicing agent was proper summary judgment in a foreclosure action as it "comports with

the requirements of Civ.R. 56(E)"); Fifth Third Mtge. Co. v. Bell, 12th Dist. Madison No.

CA2013-02-003, 2013-Ohio-3678, ¶ 28 (finding affidavit from loan servicing agent was proper

summary judgment evidence in a foreclosure action); Deutsche Bank Natl. Trust Co. v.

Sexton, 12th Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 13 (same); Chase
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Manhattan Mortg. Corp. v. Urquhart, 12th Dist. Butler Nos. CA2004-04-098 and CA2004-10-

271, 2005-Ohio-4627, ¶ 14 (same). Therefore, as the overwhelming evidence reveals

Szymoniak's affidavit was proper summary judgment evidence, the Putmans' second

argument is also without merit and overruled. Accordingly, as we find no merit to either of the

two arguments advanced by the Putmans under their first assignment of error, the Putmans'

first assignment of error is overruled.

       {¶ 14} Assignment of Error No. 2:

       {¶ 15} THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION FOR

SUMMARY JUDGMENT BECAUSE A MATERIAL ISSUE OF FACT REMAINED FOR TRIAL

REGARDING THE APPEARANCE OF THE ORIGINAL NOTE AND WHETHER OR NOT

APPELLEE HAD STANDING TO BRING THE FORECLOSURE ACTION IN THE FIRST

PLACE.

       {¶ 16} In their second assignment of error, the Putmans argue the trial court erred by

granting summary judgment to Bank of New York Mellon. We disagree.

       {¶ 17} Summary judgment is a procedural device used to terminate litigation when

there are no issues in a case requiring a formal trial. Roberts v. RMB Ents., Inc., 197 Ohio

App.3d 435, 2011-Ohio-6223, ¶ 6 (12th Dist.). On appeal, a trial court's decision granting

summary judgment is reviewed de novo. Moody v. Pilot Travel Ctrs., L.L.C., 12th Dist. Butler

No. CA2011-07-141, 2012-Ohio-1478, ¶ 7, citing Burgess v. Tackas, 125 Ohio App.3d 294,

296 (8th Dist.1998). In applying the de novo standard, the appellate court is required to

"us[e] the same standard that the trial court should have used, and * * * examine the

evidence to determine whether as a matter of law no genuine issues exist for trial." Bravard

v. Curran, 155 Ohio App.3d 713, 2004-Ohio-181, ¶ 9 (12th Dist.), quoting Brewer v.

Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383 (8th Dist.1997).

       {¶ 18} Pursuant to Civ.R. 56, a trial court may grant summary judgment only when (1)
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there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as

a matter of law, and (3) the evidence submitted can only lead reasonable minds to a

conclusion that is adverse to the nonmoving party. BAC Home Loans Servicing, L.P. v.

Kolenich, 194 Ohio App.3d 777, 2011-Ohio-3345, ¶ 17 (12th Dist.). The party moving for

summary judgment bears the initial burden of demonstrating that no genuine issue of

material fact exists. Touhey v. Ed's Tree & Turf, L.L.C., 194 Ohio App.3d 800, 2011-Ohio-

3432, ¶ 7 (12th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Once this

burden is met, the nonmoving party must then present evidence to show that there is some

issue of material fact yet remaining for the trial court to resolve. Smedley v. Discount Drug

Mart, Inc., 190 Ohio App.3d 684, 2010-Ohio-5665, ¶ 11 (12th Dist.). In determining whether

a genuine issue of material fact exists, the evidence must be construed in the nonmoving

party's favor. Walters v. Middletown Properties Co., 12th Dist. Butler No. CA2001-10-249,

2002-Ohio-3730, ¶ 10.

       {¶ 19} The Putmans first argue the trial court erred by granting summary judgment to

Bank of New York Mellon because the note attached to Syzmoniak's affidavit "was different

in appearance" from the note originally attached to the complaint. However, the only

difference between the note attached to the complaint and the note attached to Syzmoniak's

affidavit is two small computer generated boxes highlighting the identity of the original lender

as Countrywide Home Loans and the endorsement in blank from David A. Spector, the

managing director of Countrywide Home Loans. Nothing about the terms of the note has

been changed.      Moreover, Mrs. Putman's initials and signature still appear on both

documents. We fail to see how this minor difference between the two documents creates an

issue of material fact. The Putmans' argument to the contrary is overruled.

       {¶ 20} Next, the Putmans argue the trial court erred by granting summary judgment to

Bank of New York Mellon because it did not have standing to pursue foreclosure on the
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Property. "Standing is a preliminary inquiry that must be made before a trial court may

consider the merits of a legal claim." Bank of New York Mellon v. Blouse, 12th Dist. Fayette

No. CA2013-02-002, 2013-Ohio-4537, ¶ 5, quoting Kincaid v. Erie Ins. Co., 128 Ohio St.3d

322, 2010-Ohio-6036, ¶ 9. Whether standing exits is a question of law that an appellate

court reviews de novo. Fifth Third Mtge. Co. v. Bell, 12th Dist. Madison No. CA2013-02-003,

2013-Ohio-3678, ¶ 13.

       {¶ 21} The Ohio Supreme Court addressed the issue of standing in a foreclosure

action in Federal Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-

5017. In that case, the Ohio Supreme Court determined that a plaintiff lacked standing to

invoke the jurisdiction of the common pleas court because "it failed to establish an interest in

the note or mortgage at the time it filed suit." Id. at ¶ 28. In so holding, the Ohio Supreme

Court noted that "[i]t is an elementary concept of law that a party lacks standing to invoke the

jurisdiction of the court unless he has, in an individual or representative capacity, some real

interest in the subject matter of the action." (Emphasis sic.) Id. at ¶ 22. Accordingly, the

Ohio Supreme Court found that a plaintiff must have standing at the time the complaint is

filed and the lack of standing cannot be cured by "receipt of an assignment of the claim or by

substitution of the real party in interest" pursuant to Civ.R. 17(A). Id. at ¶ 26 and ¶ 41.

       {¶ 22} Based on the Ohio Supreme Court's decision in Schwartzwald, this court has

determined that "a party may establish that it is the real party in interest with standing to

invoke the jurisdiction of the common pleas court when, 'at the time it files its complaint of

foreclosure, it either (1) has had a mortgage assigned or (2) is the holder of the note.'"

(Emphasis sic.) Bank of New York Mellon v. Burke, 12th Dist. Butler No. CA2012-12-245,

2013-Ohio-2860, ¶ 13, appeal not accepted, 137 Ohio St.3d 1412, 2013-Ohio-5096; BAC

Home Loans, LP v. Mapp, 12th Dist. Butler No. CA2013-01-001, 2013-Ohio-2968, ¶ 14. In

reaching this decision, we noted the Ohio Supreme Court's "'deliberate decision to use the
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disjunctive word 'or' as opposed to the conjunctive word 'and' when discussing the interest

[plaintiff] was required to establish at the time it filed the complaint' is significant" Burke,

quoting CitiMortgage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894, ¶

21.

       {¶ 23} After a thorough review of the record, we find Bank of New York Mellon

established that it had standing at the time the complaint was filed by way of its interest in

both the note and the mortgage, either of which were sufficient to establish the fact that Bank

of New York Mellon had standing to prosecute this foreclosure action. Bank of New York

Mellon is the current holder of the note, by virtue of its possession of the note indorsed in

blank by David A. Spector, the managing director of Countrywide Home Loans. In addition,

the mortgage and subsequent assignment from MERS attached to the complaint indicates

Bank of New York Mellon had the mortgage assigned to it on November 28, 2011, over two

months before the complaint was filed. Based upon the foregoing, Bank of New York Mellon

demonstrated that it had an interest in both the note and mortgage at the time it commenced

this foreclosure action, thereby establishing its standing to sue. The Putmans' argument to

the contrary is without merit and overruled.

       {¶ 24} The Putmans also argue the trial court erred by granting summary judgment to

Bank of New York Mellon because the assignment of the mortgage from MERS to Bank of

New York Mellon was invalid. The Putmans, however, lack standing to challenge the validity

of the assignment from MERS to Bank of New York Mellon. See U.S. Bank, N.A. v. Lawson,

5th Dist. Delaware No. 13CAE030021, 2014-Ohio-463, ¶ 39-40 (finding mortgagor lacked

standing to challenge an assignment of a mortgage between MERS and U.S. Bank); Bank of

New York Mellon Trust., Co. v. Unger, 8th Dist. Cuyahoga No. 97315, 2012-Ohio-1950, ¶ 35

(finding mortgagor lacked standing to challenge an assignment of a mortgage between

MERS and Bank of New York Mellon); see also Duran v. Mortgage Electronic Registration
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Systems, Inc., N.D.Ohio No. 3:12 CV 1801, 2013 WL 444450, *6 (Feb. 5, 2013) (finding

mortgagor lacked standing to challenge an assignment of a mortgage between MERS and

Bank of America).

       {¶ 25} Moreover, even if the Putmans could challenge this assignment, which they

cannot, Ohio courts "have consistently held that MERS has authority to assign a mortgage

when it is designated as both a nominee and mortgagee." BAC Home Loans Servicing, L.P.

v. Haas, 3d Dist. Marion No. 9-13-40, 2014-Ohio-438, ¶ 28; see, e.g., SRMOF 2009-1 Trust

v. Lewis, 12th Dist. Butler Nos. CA2012-11-239 and CA2013-05-068, 2014-Ohio-71, ¶ 17

(finding standing was established to foreclose on property where MERS properly assigned its

interest in the mortgage). By signing the mortgage, the Putmans contractually agreed that

MERS possess the power to transfer rights in the Property. The Putmans' argument to the

contrary is likewise without merit and overruled.

       {¶ 26} Finally, the Putmans argue the trial court erred by granting summary judgment

to Bank of New York Mellon where it failed to comply with all conditions precedent necessary

to foreclose on the Property. As this court recently stated, once a plaintiff has demonstrated

standing, thereby invoking the jurisdiction of the trial court, "in order to be entitled to judgment

in a foreclosure action, the plaintiff must indeed prove it is the current holder of the note and

mortgage, as well as, default, the amount owed, execution and delivery of the note and

mortgage, and valid recording of the mortgage." SRMOF 2009-1 Trust at ¶ 16, citing

Kolenich, 2011-Ohio-3345 at ¶ 17. However, after a thorough review of the record, we find

Bank of New York Mellon has satisfied all of these conditions, and therefore, is entitled to

foreclose on the Property. The Putmans' final argument is therefore also without merit and

overruled.

       {¶ 27} Judgment affirmed.



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       HENDRICKSON, J., concurs.


       RINGLAND, P.J., concurs separately.


       RINGLAND, P.J., concurring separately.

       {¶ 28} I concur in the majority's analysis and resolution of appellants' first assignment

of error. However, I write separately to concur in judgment only because I do not entirely

agree with the majority's analysis of appellants' second assignment of error. I again wish to

reiterate my position, as stated in my dissenting opinion in SRMOF 2009-1 Trust v. Lewis,

12th Dist. Butler Nos. CA2012-11-239 and CA2013-05-068, 2014-Ohio-71, that in order to

establish standing in a foreclosure action, a plaintiff must demonstrate, through evidence in

the record, that it had an interest in both the note and the mortgage at the time it filed the

complaint. Lewis at ¶ 32. I therefore disagree with the majority's statement that a plaintiff

only needs to establish an interest in either the note or the mortgage at the time the

complaint is filed in order to have standing to prosecute a foreclosure action. However, as

the evidence in the record before us demonstrated that Bank of New York Mellon had an

interest in both the note and mortgage at the time it filed the complaint, I agree with the

majority's resolution of appellants' second assignment of error.




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