[Cite as GMAC Mtge., L.L.C. v. Waller, 2013-Ohio-4376.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 99457



                           GMAC MORTGAGE, L.L.C.

                                                          PLAINTIFF-APPELLEE

                                                   vs.

                       CHARLES D. WALLER, ET AL.
                                                          DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-763264

        BEFORE: Stewart, A.J., Rocco, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                         October 3, 2013
FOR APPELLANTS

Charles D. Waller, pro se
Michelle Waller, pro se
7492 Prairie Dune Court
Solon, OH 44139

ATTORNEYS FOR APPELLEE GMAC MORTGAGE, L.L.C.

James S. Wertheim
Monica Levine Lacks
McGlinchey Stafford, P.L.L.C.
25550 Chagrin Boulevard, Suite 406
Cleveland, OH 44122

Matthew I. McKelvey
Lerner Sampson & Rothfuss
P.O. Box 5480
Cincinnati, OH 45201

ATTORNEYS FOR APPELLEES CITY OF CLEVELAND HTS., HUNTINGTON
NATIONAL BANK, AND PNC BANK, N.A.

W. Cory Phillips
Sara M. Donnersbach
Robert B. Weltman
Weltman, Weinberg & Reis Co., L.P.A.
Lakeside Place, Suite 200
323 W. Lakeside Avenue
Cleveland, OH 44113

ATTORNEY FOR APPELLEE DOMESTIC LINEN SUPPLY & LAUNDRY CO.

James G. Kozelek
Weltman, Weinberg & Reis Co., L.P.A.
175 S. Third Street, Suite 900
Columbus, OH 43215

ATTORNEY FOR APPELLEE CRANBERRY FINANCIAL, L.L.C.
John E. Haller
Shumaker, Loop & Kendrick, L.L.P.
41 S. High Street, Suite 2400
Columbus, OH 43215

ATTORNEY FOR APPELLEE H & M LANDSCAPING

Mark I. Wachter
Wachter Kurant, L.L.C.
30195 Chagrin Boulevard
300 Pepper Pike Place
Cleveland, OH 44124

ATTORNEY FOR              APPELLEE      SIGNATURE   OF   SOLON   MASTER
ASSOCIATION

Charles P. Royer
McCarthy, Lebit, Crystal & Liffman Co., L.P.A.
101 W. Prospect Avenue, Suite 1800
Cleveland, OH 44115

ATTORNEY FOR APPELLEE STATE OF OHIO, DEPARTMENT OF
TAXATION

Amy Keller Kaufman
Ohio Attorney General
Revenue Recovery
150 E. Gay Street, 21st Floor
Columbus, OH 43215

FOR ARROW FINANCIAL SERVICES, L.L.C.

Arrow Financial Services, L.L.C.
Assignee of HSBC Bank Nevada N.A.
c/o CT Corporation System
5996 N. Touhy Avenue
Niles, IL 60714
MELODY J. STEWART, A.J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R.11.1.

       {¶2} Husband and wife Charles and Michelle Waller appeal the grant of summary

judgment in favor of appellee GMAC Mortgage, L.L.C. in a foreclosure action filed

against them. In the Wallers’ sole assignment of error, they argue that the trial court

erred by granting summary judgment in favor of GMAC because it did not have standing

to bring this action against them. For the reasons that follow, we affirm.

       {¶3} In July 2006, Charles Waller borrowed $739,200 from Beach First National

Bank in order to finance the purchase of a property on Prairie Dune Court in Solon, Ohio.

 He signed an adjustable rate note and secured the loan with a mortgage. The mortgage

designated Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for

Beach First National Bank.

       {¶4} On August 31, 2011, GMAC filed a complaint in foreclosure against the

Wallers after they fell behind in their mortgage payments. The complaint was amended

on September 26, 2011. Attached to the amended complaint was a copy of the adjustable

rate note and a prepayment addendum to the note signed by Charles Waller. Attached to

the note were two allonges containing a total of three endorsements. The first allonge

contained two endorsements: one by Beach First National Bank to Greenpoint Mortgage

Funding, Inc. and the other endorsed in blank by Greenpoint.          The second allonge

contained one endorsement from Greenpoint to GMAC. Also attached to the complaint
was a copy of a loan modification agreement from GMAC signed by both Charles and

Michelle Waller, a copy of the mortgage, and a copy of the assignment of the mortgage

from MERS, as nominee for Beach First National Bank, to GMAC.

      {¶5} On August 16, 2012, the Wallers filed a motion for summary judgment

against GMAC. On September 18, 2012, GMAC filed a motion for summary judgment

against the Wallers. On October 25, 2012, the magistrate granted GMAC’s motion and

denied the Wallers’ motion. The Wallers filed objections to the magistrate’s decision,

but those objections were overruled and the decision was adopted by the trial court on

November 19, 2012. On appeal, the Wallers argue that summary judgment in favor of

GMAC is improper.

      {¶6} Under Civ.R. 56(C), summary judgment is proper when: (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, the conclusion is adverse

to that party. An appellate court reviews a trial court’s decision granting summary

judgment de novo. Huntington Natl. Bank v. Blount, 8th Dist. Cuyahoga No. 98514,

2013-Ohio-3128,  10, citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

1996-Ohio-336, 671 N.E.2d 241.

      {¶7} The Wallers’ basis for arguing that GMAC lacks standing to file this

foreclosure action is unclear from their appellate brief. To the best of our understanding,
the Wallers challenge GMAC’s right to foreclose based on invalid assignments of both

the note and mortgage.    However, we find that GMAC demonstrated that both the note

and the mortgage were properly assigned to GMAC, thus proving it has standing to

foreclose.

        {¶8} Where homeowners are in default on a loan, they are subject to foreclosure

proceedings by the holder of the note. Bridge v. Aames Capital Corp., N.D.Ohio No.

1:09 CV 2947, 2010 U.S. Dist. LEXIS 103154, *12 (Sept. 29, 2010). With respect to the

debt owed by the homeowners under the mortgage contract, the specific holder of the note

is of no consequence. Id. See also Bank of N.Y. Mellon Trust Co., N.A. v. Unger, 8th

Dist. Cuyahoga No. 97315, 2012-Ohio-1950.

        {¶9} In this case, the chain of custody of both the note and mortgage establish

GMAC’s right to foreclosure. The allonges attached to the complaint demonstrate that

the note was properly assigned from Beach First National Bank to Greenpoint, then from

Greenpoint to GMAC.        Likewise, the mortgage assignment also attached to the

complaint shows the mortgage was assigned from MERS, as nominee for Beach First

National Bank, to GMAC.

        {¶10} Furthermore, the Wallers’ assertion that MERS’ assignment of the mortgage

is unenforceable because MERS was never the holder of the note is erroneous. Ohio

courts have held that a party who receives an assignment of mortgage from MERS as

nominee has standing to foreclosure on the mortgage when the borrower defaults on the

loan.   See Deutsche Bank Natl. Trust Co. v. Ingle, 8th Dist. Cuyahoga No. 92487,
2009-Ohio-3886, BAC Home Loans Servicing, L.P. v. Hall, 12th Dist. Warren No.

CA2009-10-135, 2010-Ohio-3472. Deutsche Bank Natl. Trust Co. v. Traxler, 12th Dist.

Warren No. 09CA009739, 2010-Ohio-3940.

       {¶11} Lastly, the Wallers argue that the assignment of the note and mortgage is

invalid because these assignments took place after the complaint was filed, and that the

mortgage was never recorded with the county recorder’s office. This argument fails

because both the note and the mortgage were assigned before the filing of the complaint,

and additionally the mortgage was recorded with the county recorder’s office.

       {¶12} In Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13,

2012-Ohio-5017, 979 N.E.2d 1214, the Supreme Court determined that standing to sue is

required to invoke the jurisdiction of the common pleas court and is determined at the

commencement of a suit. Additionally, the court stated that post-filing events attempting

to cure standing may be disregarded.          Id. at  24-26.    This court reiterated the

requirements to establish standing in a foreclosure action in CitiMortgage, Inc. v.

Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894. In Patterson, we held that a

party who either has a mortgage assignment or is the holder of the note at the time the

complaint is filed has the requisite standing to establish an interest in the suit and invoke

the jurisdiction of the court. Id. at  21.

       {¶13} In this case, the record shows that the note was assigned from Greenpoint to

GMAC in July 2004, and the mortgage was assigned to GMAC from MERS in July

2007 and subsequently recorded.        These assignments and the recording predate the
August 2011 filing of the original complaint, and the September 2011 filing of the

amended complaint. Therefore, the Wallers’ argument is without merit. Moreover,

even if the mortgage had not been recorded, the lack of recording has no bearing on

GMAC’s enforcement rights. See United States Bank Natl. Assn. v. Morales, 11th Dist.

Portage No. 2009-P-0012, 2009-Ohio-5635,  32 (the recording of an assignment is not a

condition precedent to the right of foreclosure).

       {¶14} Lastly, the Wallers claim that the mortgage assignment is defective. In

their brief, the Wallers state that Shellie Hill, who signed the assignment on behalf of

MERS as the “Assistant Secretary,” is really an employee of GMAC misrepresenting her

identity for the sole purpose of this litigation.        The Wallers do not explain the

significance of this assertion, so we summarily reject it. See App.R. 16(A)(7).

       {¶15} Judgment affirmed.

       It is ordered that appellee recover of appellants its 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 Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, ADMINISTRATIVE JUDGE
KENNETH A. ROCCO, J., and
EILEEN T. GALLAGHER, J., CONCUR
