[Cite as CitiMortgage, Inc. v. Wiley, 2016-Ohio-5902.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

CitiMortgage, Inc.,                                  :

                 Plaintiff-Appellee,                 :
                                                                      No. 15AP-642
v.                                                   :             (C.P.C. No. 14CV-4358)

Donna D. Wiley,                                      :         (REGULAR CALENDAR)

                 Defendant-Appellant.                :



                                            D E C I S I O N

                                   Rendered on September 20, 2016


                 On brief: Graydon Head & Ritchey, LLP, Nathan L. Swehla,
                 Harry W. Cappel, and Harry J. Finke for appellee. Argued:
                 Nathan L. Swehla.

                 On brief: Thomas L. Sooy, for appellant. Argued:
                 Thomas L. Sooy.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
         {¶ 1} Defendant-appellant, Donna D. Wiley, appeals from a decision of the
Franklin County Court of Common Pleas, issued on May 28, 2015 and reduced to a final
decree of foreclosure on June 3, 2015, which granted summary judgment to plaintiff-
appellee, CitiMortgage, Inc. ("CitiMortgage"). For the following reasons, we reverse and
remand.
    I.   FACTS AND PROCEDURAL HISTORY
         {¶ 2} On November 16, 2007, Wiley signed a note on behalf of her mother, Adella
Davies, acting through a power of attorney1 as her attorney in fact. The note obligated
Davies to repay $277,500 plus interest to a lender, CitiMortgage. Although Wiley signed
1The power of attorney document is not in the record but it is apparently undisputed that Wiley was
authorized to act as attorney in fact for her mother.
                                                                                                       2
No. 15AP-642
as attorney in fact for Davies, Wiley did not sign the note in her personal capacity or
become obligated personally for the debt. The note permitted acceleration of the amount
due upon default or transfer of the property securing the loan, but it required 30 days
notice to the borrower by its terms.
        {¶ 3} As attorney in fact for Davies, and in her own personal capacity, Wiley
executed a mortgage for the property commonly known as 7740 Walnut St., New Albany,
Ohio 43054 with a debt amount of $277,500, plus interest. The mortgage identified Wiley
and Davies as borrowers and joint tenants.2 It identified CitiMortgage as the lender. But
the mortgage made the Mortgage Electronic Registration System, Inc. ("MERS"), the
mortgagee, as a sole nominee for the lender, CitiMortgage, and the lender's successors
and assigns. The mortgage also permitted acceleration of the amount due upon default or
transfer of the property upon which the loan was made, and similar to the terms of the
note, the mortgage by its terms required 30 days notice to the borrower for acceleration.
        {¶ 4} In May through July 2011, the parties exchanged and signed two identical
loan modification agreements. Each of the agreements modified the maturity date and
loan payments due in order to work with the borrower (Davies) who apparently was
experiencing financial hardship. Both agreements were signed by Wiley for Davies as
attorney in fact and also in her own capacity. However, associated with the signature
block where Wiley signed in her own capacity, the following printed legend appears, "I
consent to the modification but do not assume personal liability under the Note." (Ex. B at
4; Ex. C at 4, Aug. 26, 2014 Aff. in Support of Mot. for Summ. Jgmt.)
        {¶ 5} On April 1, 2013, Davies died. This caused some hardship to Wiley (who
lived with her mother and cared for her).                Approximately nine months later, on
January 31, 2014, CitiMortgage sent a notice of default by first class mail to: Adella
Davies, 7740 Walnut Street, New Albany, OH 43054-9726. It was alleged in the notice
that the loan was in default and was past due by $4079.91 including $398.88 in late
charges and $151.50 in expenses. The notice also contained a warning that failure to cure
the default by paying that amount in addition to regular monthly payments by March 7,
2014, "may result in the acceleration of all sums due under the Security Instrument." (Ex.

2 The deed that shows the exact terms upon which Wiley and Davies shared ownership of the property is not
in the record.
                                                                                                        3
No. 15AP-642
F at 16, Aff. in Support of Mot. for Summ. Jgmt.) Although Wiley lived at 7740 Walnut
Street, Wiley never received a letter or any correspondence from CitiMortgage.
           {¶ 6} On April 21, 2014, CitiMortgage filed a foreclosure action which also sought
"other relief, legal and equitable, as may be proper and necessary," and attached copies of
the note, mortgage, and modifications. (Apr. 21, 2014 Compl. at 4.) It alleged that Davies
was deceased, as of April 1, 2013. It alleged that Wiley might claim an interest in the
property by virtue of being a current titleholder, that the Franklin County Treasurer might
claim an interest, and that Wiley's husband (Wiley was divorced before the signing of the
note and mortgage and has not remarried) might claim an interest in the property. It also
attached an assignment of mortgage showing that MERS had assigned the mortgage to
CitiMortgage in January 2014. The complaint did not join Davies or Davies' estate or seek
to establish liability for her debts against her unknown heirs and assigns. However, a
preliminary judicial report filed pursuant to Loc.R. 96 of the Franklin County Court of
Common Pleas and R.C. 2329.191 from First American Title Insurance Company sets
forth that Wiley enjoyed a right of survivorship in the property at 7740 Walnut Street.3
           {¶ 7} On August 26, 2014, CitiMortgage moved for summary judgment and
attached the same items of evidence that it had attached to the complaint as well as
affidavits regarding the origins and authenticity of the evidence attached. The parties
attempted mediation on October 16, 2014, but were unable to reach a settlement. Wiley
responded in opposition to summary judgment on December 23, 2014 and attached an
affidavit in which she maintained that she had not been given proper notice of default
before the commencement of foreclosure proceedings. Shortly thereafter, on January 26,
2015, Wiley also filed a motion for summary judgment.                                Both sides engaged in
considerable briefing (including replies and supplemental memoranda with additional
evidence attached). Among other evidence, CitiMortgage submitted an affidavit showing
the January 31, 2014 notice to Davies had been sent by first class mail and Wiley
submitted admissions by CitiMortgage admitting that Wiley is not obligated for the debt
under the note or modifications, and that neither Davies nor her estate are parties to the
suit.


3   Again, a copy of the deed that could confirm this report is not in the record.
                                                                                         4
No. 15AP-642
       {¶ 8} On May 28, 2015, the trial court granted CitiMortgage summary judgment.
The trial court produced a final entry in the form of a foreclosure decree on June 3, 2015.
Wiley now appeals.
 II.   ASSIGNMENTS OF ERROR
       {¶ 9} Wiley presents three assignments of error for review:

              [1.] THE TRIAL COURT ERRED IN DENYING
              DEFENDANT/APPELLANT DONNA D. WILEY'S MOTION
              FOR SUMMARY JUDGMENT WHEN NO GENUINE ISSUE
              OF MATERIAL FACT EXISTS AS TO THE PLAINTIFF,
              CITIMORTGAGE, INC. HAVING FAILED TO GIVE NOTICE
              OF DEFAULT AND INTENT TO FORECLOSE TO MS.
              WILEY IN ACCORD WITH THE TERMS OF THE
              MORTGAGE DEED.

              [2.] THE TRIAL COURT ERRED IN GRANTING
              CITIMORTGAGE, INC.'S MOTION FOR SUMMARY
              JUDGMENT WHEN, AT MINIMUM, A GENUINE ISSUE OF
              MATERIAL   FACT     EXISTS  AS    TO   WHETHER
              CITIMORTGAGE, INC.'S AUGUST 26, 2014 MOTION FOR
              SUMMARY JUDGMENT SET FORTH SUFFICIENT CIV. R.
              56 EVIDENCE ENTITLING IT TO JUDGMENT AS A
              MATTER OF LAW.

              [3.] ALTERNATIVELY, IN ADDRESSING CITIMORTGAGE,
              INC.'S CLAIM IN FORECLOSURE, THE TRIAL COURT
              ERRED IN HOLDING THAT CITIMORTGAGE, INC. WAS
              ENTITLED TO ENFORCE THE MORTGAGE DEED
              AGAINST MS. WILEY.

III.   DISCUSSION
       {¶ 10} Civ.R. 56(C) states:

              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.

The Supreme Court of Ohio has explained:

              Summary judgment will be granted only when there remains
              no genuine issue of material fact and, when construing the
              evidence most strongly in favor of the nonmoving party,
                                                                                          5
No. 15AP-642
              reasonable minds can only conclude that the moving party is
              entitled to judgment as a matter of law. Civ.R. 56(C); Temple
              v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio
              Op. 3d 466, 364 N.E.2d 267. The burden of showing that no
              genuine issue of material fact exists falls upon the party who
              files for summary judgment. Dresher v. Burt (1996), 75 Ohio
              St.3d 280, 294, 1996 Ohio 107, 662 N.E.2d 264. Once the
              movant supports his or her motion with appropriate
              evidentiary materials, the nonmoving party "may not rest
              upon mere allegations or denials of the party's pleadings, but
              the party's response, by affidavit or as otherwise provided in
              this rule, must set forth specific facts showing that there is a
              genuine issue for trial." Civ.R. 56(E).

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10; see also, e.g., Esber Beverage
Co. v. Labatt United States Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544,
¶ 9.   Although Civ.R. 56(C) and 56(E) restrict the types of evidence that may be
considered upon summary judgment, in the absence of objections, a court has discretion
whether to consider evidence that might otherwise be improper to consider. Open
Container, Ltd. v. CB Richard Ellis, Inc., 10th Dist. No. 14AP-133, 2015-Ohio-85, ¶ 11.
       {¶ 11} When reviewing a trial court's decision on summary judgment, our review is
de novo. Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818, ¶ 12;
Bonacorsi v. Wheeling & Lake Erie Ry., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24. "De
novo appellate review means that the court of appeals independently reviews the record
and affords no deference to the trial court's decision." (Citations, internal brackets, and
internal quotation marks omitted.) Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-
6529, ¶ 9. "Therefore, we undertake an independent review to determine whether [a
party] was entitled to judgment as a matter of law." FV-I, Inc. v. Lackey, 10th Dist. No.
13AP-983, 2014-Ohio-4944, ¶ 14.
       A. Preliminary Issue–Proper Parties and Standing
       {¶ 12} In the course of arguing that Wiley did not receive notice from CitiMortgage
prior to the action to foreclose, Wiley asserts that "Ms. Wiley is not a party to the
underlying Promissory Note." (Wiley Brief at 45.) She is correct in that both her affidavit
and admissions by CitiMortgage make clear that she is not a party to the note, is not
obligated under the note, and additionally, that neither her mother (Davies) nor Davies'
estate are parties to this action. Although the trial court stated that Wiley was the title
                                                                                        6
No. 15AP-642
holder of the property, none of the documents submitted in support of or opposition to
summary judgment in accordance with Civ.R. 56, including admissions by CitiMortgage,
addresses whether Wiley's presence in the matter was based on her interest in the
property by deed through survivorship, by devise from Davies' estate, or whether she was
a party simply by virtue of having signed the mortgage document. The record also does
not show if Davies even had the ability to devise her interest in the property at 7740
Walnut Street or to whom it would have been devised. Neither side argues the specific
issue of proper parties, and we recognize that we generally address only assignments of
error. See, e.g., Kellough v. Ohio State Bd. of Edn., 10th Dist. No. 10AP-419, 2011-Ohio-
431, ¶ 54. However, in the course of independently reviewing the trial court's decision de
novo, we cannot avoid addressing such a fundamental issue. Lackey at ¶ 14 (instructing
that de novo review is independent); see also App.R. 12(A)(1)(b) (requiring an appellate
court to determine the merits of the appeal on, among other things, "the record on appeal
under App. R. 9"). Thus, we examine CitiMortgage's standing to bring the action as an
issue preliminary to our review of Wiley's assignments of error.
       {¶ 13} In 1872, the United States Supreme Court made this observation:

              All the authorities agree that the debt is the principal thing
              and the mortgage an accessory. * * * The mortgage can have
              no separate existence. When the note is paid the mortgage
              expires. It cannot survive for a moment the debt which the
              note represents.

Carpenter v. Longan, 83 U.S. 271, 275 (1872). More recently, this Court explained:

              Because it is the note that creates the debt, and not the
              mortgage, unless and until the right to enforce the original
              note has been established, there is no basis for foreclosure.
              "Under Ohio common law, where a promissory note is
              secured by a mortgage, the note is evidence of the debt and
              the mortgage is a mere incident of the debt."

(Emphasis sic.) U.S. Bank N.A. v. George, 10th Dist. No. 14AP-817, 2015-Ohio-4957,
¶ 22, quoting U.S. Bank N.A. v. Gray, 10th Dist. No. 12AP-953, 2013-Ohio-3340, ¶ 32,
citing Edgar v. Haines, 109 Ohio St. 159, 164 (1923); Kernohan v. Manss, 53 Ohio St. 118,
133 (1895); Bank of Am., N.A. v. Pasqualone, 10th Dist. No. 13AP-87, 2013-Ohio-5795,
                                                                                                           7
No. 15AP-642
¶ 38. In other words, it is the right to recover under the note that gives rise to the right to
invoke the mortgage.
        {¶ 14} Under the recent decision of Deutsche Bank Natl. Trust Co. v. Holden, __
Ohio St.3d __, 2016-Ohio-4603,4 the Supreme Court reaffirmed this proposition of
federal and Ohio law when it stated:

                We have long recognized that an action for a personal
                judgment on a promissory note and an action to enforce
                mortgage covenants are "separate and distinct" remedies.
                Carr [v. Home Owners Loan Corp., 148 Ohio St. 533, 540
                (1947)]; accord Giddings v. Barney, 31 Ohio St. 80, 82 (1876)
                ("The right to proceed, in equity, to enforce the mortgage lien,
                and the right to proceed, at law, to collect the mortgage debt,
                are different but concurrent remedies"). Based on the
                distinction between these causes of action—i.e., one is an
                action on a contract, while the other is an action to enforce a
                property interest created by the mortgage—we have explained
                that "the bar of the note or other instrument secured by
                mortgage does not necessarily bar an action on the mortgage."
                Kerr v. Lydecker, 51 Ohio St. 240, 253, 37 N.E. 267 (1894);
                accord Bradfield[v. Hale, 67 Ohio St. 316, 325 (1902)]
                (holding that an action for ejectment can be maintained after
                the statute of limitations on the note has expired); Simon[v.
                Union Trust Co., 126 Ohio St. 346, 350 (1933)] ("For the
                purpose of subjecting the land to the payment of the mortgage
                debt, no personal judgment was ever necessary").

Id. at ¶ 25.
        {¶ 15} The context in which the Supreme Court applied this proposition of law was
a foreclosure action in which the note had been discharged in bankruptcy, but the debt
was not paid and the mortgage survived the bankruptcy without being discharged. The
Ninth District Court of Appeals had reversed the trial court's summary judgment decision

4 We note that this court has cited the prior Holden decision (Deutsche Bank Natl. Trust Co. v. Holden, 9th
Dist. No. 26970, 2014-Ohio-1333) now overruled by Holden, 2016-Ohio-4603, for the proposition that a
copy of a note, submitted with a summary judgment motion, containing the original lender's undated blank
endorsement that was not included in a copy attached to a foreclosure complaint posed a genuine issue of
material fact as to whether plaintiff was entitled to enforce note. George at ¶ 20, citing Holden, 2014-Ohio-
1333 at ¶ 15. The Supreme Court stated that standing on the note under Fed. Home Loan Mtge. Corp. v.
Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 21 was moot with regard to the note "because no
judgment can be obtained on it by virtue of the bankruptcy discharge of the maker's obligation" and called
the case an "outlier" because of its unusual factual circumstances involving discharge in bankruptcy of the
obligation on the note but survival of the mortgage. Holden, 2016-Ohio-4603 at ¶ 6.
                                                                                           8
No. 15AP-642
granting foreclosure because it found a material issue of fact "as to whether Deutsche
Bank was the holder of the note at the time the complaint was filed." Deutsche Bank Natl.
Trust Co. v. Holden, 9th Dist. No. 26970, 2014-Ohio-1333.
       {¶ 16} Deutsche Bank had offered two different versions of the note into the
record. Holden, 2014-Ohio-1333 at ¶ 15.        The Supreme Court settled the summary
judgment issue by citing testimony which showed that, regardless of differing
endorsements, "the bank had the note in its possession before it filed the complaint."
Holden, 2016-Ohio-4603 at ¶ 13, 34. It then found that Deutsche Bank had standing to
proceed in equity on foreclosure and that it was able to "use the deficiency on the note as
evidence to establish the amount it may collect from the forced sale of the property." Id. at
¶ 7.
       {¶ 17} In reaching its decision, the Supreme Court noted:

              The typical progression of an action to foreclose a mortgage
              involves a legal action against the maker of a note who has
              defaulted on payments together with an equitable action on
              the mortgage to force a sale of the property based on the
              lender's secured position. The two forms of action proceed
              concurrently, as the judgment on the note provides the
              evidence needed to permit the secured party to foreclose and
              force a sale of the property to collect the amount of deficiency
              from the equity in the real estate.

Id. at ¶ 5. Thus, the right to enforce a note can be exercised through concurrent remedies,
by suit in personam for monetary relief against the debtor and in rem against the property
itself. BAC Home Loans Servicing, LP v. Heirs, 10th Dist. No. 10AP-396, 2011-Ohio-1596,
¶ 15, citing Fifth Third Bank v. Hopkins, 177 Ohio App.3d 114, 2008-Ohio-2959, ¶ 16.
       {¶ 18} In Holden, the Supreme Court observed that Deutsche Bank was the holder
of both the note and the mortgage at the time of the filing of the foreclosure action, and it
upheld foreclosure on the mortgage as a separate remedy. (Id. at ¶ 5) In doing so, the
Supreme Court made the critical distinction between being a party not entitled to obtain
judgment on a debt as opposed to a party not entitled to enforce a note under R.C.
1303.31(A) (UCC 3-301). Because the Supreme Court found that Deutsche Bank had
possession of the note at the time it commenced the foreclosure proceeding it had
standing to foreclose on the property. It further found that Deutsche Bank could collect
                                                                                             9
No. 15AP-642
the deficiency on the note from the proceeds of the foreclosure sale, even though it could
not obtain an actual judgment on the note, itself.
       {¶ 19} Wiley is an obligor on only the mortgage but never the note, leaving
CitiMortgage in a similar position to Deutsche Bank in Holden, not collecting on the note
and instead pursuing its remedies in rem against the real property. The record does not
establish that Davies' estate is uncollectable, only that the estate is the obligor on the note
but has not been made a party to the underlying action. If a claim is brought for a
monetary or deficiency judgment on the note, then the party obligated on the note is a
necessary party to the action—it is against that party, personally, that a monetary
judgment is sought. Heirs at ¶ 15, citing United States v. Alvarado, 5 F.3d 1425, 1429
(11th Cir.1993). If a claim is brought solely in equity through foreclosure on the mortgage
as a means to collect for the deficiency on the note, then the persons having an interest in
the property at issue are the necessary parties. Heirs at ¶ 15; Hunter v. Grier, 173 Ohio St.
158, 162 (1962); Moore v. Starks, 1 Ohio St. 369 (1853), syllabus.
       {¶ 20} In this case, according to both the original note and the loan modifications
of the note, the borrower on the note was Davies and only Davies. Wiley signed the note
only on behalf of her mother acting through a power of attorney as her attorney in fact.
Wiley did not sign the note or become obligated personally for the debt. Wiley signed both
modifications in the record and the mortgage as Davies' attorney in fact and also in her
own capacity but with the proviso, "I consent to the modification but do not assume
personal liability under the Note." (Ex. B at 4, Aff. in Support of Mot. for Summ. Jgmt.)
The mortgage identified both Wiley and Davies as borrowers and joint tenants.
Additionally, the mortgage also contained this more specific language:

              13. Joint and Several Liability; Co-signers; Successors and
              Assigns Bound.        Borrower covenants and agrees that
              Borrower's obligations and liability shall be joint and several.
              However, any Borrower who co-signs this Security Instrument
              but does not execute the Note (a "co-signer"): (a) is co-signing
              this Security Instrument only to mortgage, grant and convey
              the co-signer's interest in the Property under the terms of this
              Security Instrument; (b) is not personally obligated to pay
              the sums secured by this Security Instrument; and (c) agrees
              that Lender and any other Borrower can agree to extend,
              modify, forbear or make any accommodations with regard to
                                                                                                          10
No. 15AP-642
                the terms of this Security Instrument or the Note without the
                co-signer's consent.

(Emphasis sic.) (Ex. D at 11, Aff. in Support of Mot. for Summ. Jgmt.) Under the plain
language of the mortgage, Wiley is merely a co-signer who is "not personally obligated to
pay the sums secured by" the mortgage.                   Id.    Accordingly, in reviewing summary
judgment de novo we cannot find any evidence in the summary judgment record to
suggest that Wiley owes a debt to CitiMortgage.
        {¶ 21} It was Davies' estate that owed the debt on the note to CitiMortgage at the
time the action was filed. But she had predeceased the foreclosure action by over a year.
CitiMortgage pled in the complaint that she was deceased and attached records to the
complaint confirming the fact. Yet, CitiMortgage did not sue Davies, Davies' estate, or
seek to establish who were her heirs for the purpose of establishing liability for her debts
against the interests of her heirs and assigns, nor has it attempted to join such parties or
to amend the complaint.5 Insofar as CitiMortgage sought "legal" relief as to Davies' debt
on the note (as separate from "equitable" relief in rem as against the real estate), there has
been a failure to join necessary parties to the action.                   However, schedule B to the
preliminary judicial report lists a bankruptcy discharge for Davies on May 21, 2013, and
the record does not show whether or not, or to what extent if it did, this affected the debt
on the note. While the record is somewhat murky on the effect of the bankruptcy filing on
the note, CitiMortgage may be in the identical position as Deutsche Bank in Holden, not
able to pursue its remedies concerning the note and left with only the option of
foreclosure in rem as against the real estate at 7740 Walnut Street.

5 The note and mortgage also both contain provisions making the transfer of an interest in the property an

acceleration event. The note provides:
        If all or any part of the Property or any Interest in the Property is sold or transferred * * *
        without Lender's prior written consent, Lender may require immediate payment in full of
        all sums secured by this Security Instrument.
(Ex. A at 3, Aff. in Support of Mot. for Summ. Jgmt.) The mortgage provides:
        If all or any part of the Property of any Interest in the Property is sold or transferred * * *
        without Lender's prior written consent. Lender may require immediate payment in full of
        all sums secured by this Security Instrument. However, this option shall not be exercised
        by Lender if such exercise is prohibited by Applicable Law.
(Ex. D at 12, Aff. in Support of Mot. for Summ. Jgmt.) The record is devoid of any suggestion that
CitiMortgage exercised this option at the time when Davies' estate was probated or administered in order to
ensure the property did not transfer without the transferee assuming an obligation under the note.
                                                                                             11
No. 15AP-642
       {¶ 22} It appears that the trial court attempted to resolve the issue of standing by
citing the complaint for the conclusion that Wiley was the title holder of the property by
survivorship rights and holding that CitiMortgage could proceed in rem.                  In the
complaint, CitiMortgage asserts, and in the answer Wiley admits, that Wiley was "a
current titleholder" to the property, but not that she was the only title holder. ( Emphasis
added.) (Compl. at 3.) The mortgage, however, refers to Wiley and Davies as "Joint
Tenants," without specifically noting that there was a right of survivorship. (Ex. D at 1, Aff.
in Support of Mot. for Summ. Jgmt.) In Ohio, joint tenancies do not result in a right of
survivorship unless the language of the deed so specifies. In re Estate of Shelton, 154 Ohio
App.3d 188, 2003-Ohio-4593, ¶ 9 ("Where a joint tenancy is expressed without words of
survivorship, it is construed as a tenancy in common, i.e., without a right of
survivorship."); see also, e.g., Murphy v. Murphy, 77 Ohio App.3d 573, 575-76 (1st
Dist.1991).
       {¶ 23} The "Preliminary Judicial Report" prepared by First American Title
Insurance Company and filed in the record by CitiMortgage, is the evidence in the record
that Wiley enjoyed a right of survivorship. While the report was not submitted as an
exhibit for summary judgment, nor does it conform to the evidence types set forth in
Civ.R. 56(C) or 56(E), and was not cited by the trial court, and Wiley did not object to the
report, seek to strike it or offer evidence to counter evidence of her right of survivorship.
Upon our independent review, we are permitted to consider it. Open Container, Ltd. at
¶ 11. Based on this, we are able to conclude from the evidence in the record that Wiley
was the sole title holder of the property at 7740 Walnut Street following Davies' death. To
the extent that CitiMortgage proceeded only in equity as against the property, it has
joined all necessary parties, because there is no dispute that Wiley is the sole title holder
of the property.
       {¶ 24} Because Wiley is obligated under the mortgage only and not on the note,
CitiMortgage cannot seek payment of the note from Wiley. To the extent that the
complaint sought "legal" as opposed to "equitable" relief concerning Davies' debt (unless
it had been discharged in bankruptcy in 2013, and the record is not clear on this),
CitiMortgage has not joined all necessary parties. Thus, its claims for legal relief fail.
                                                                                          12
No. 15AP-642
       {¶ 25} However, CitiMortgage has also sought a remedy in equity for foreclosure.
Under Holden, 2016-Ohio-4603, CitiMortgage is not prevented from pursuing this
remedy and using "the deficiency on the note as evidence to establish the amount it may
collect from the forced sale of the property." Id. at ¶ 7. Thus, summary judgment could
have been proper as against Wiley in equity for foreclosure, but based on the issues we
have discussed concerning standing, it was not properly granted insofar as it operates to
obligate Wiley on any eventual deficiency judgment post-sale.
       B. First Assignment of Error–Whether the Trial Court Erred in
          Granting Summary Judgment to CitiMortgage Rather than Wiley on
          the Issue of Whether CitiMortgage Provided Proper Notice Prior to
          Attempting to Foreclose
       {¶ 26} Wiley argues that CitiMortgage failed to provide notice to her prior to
commencing foreclosure proceedings and that the trial court erred in finding that
CitiMortgage was entitled to foreclose against her. We have previously recognized that
"[w]here prior notice of default and/or acceleration is required by a provision in a note or
mortgage instrument, the provision of notice is a condition precedent." Natl. City Mtge.
Co. v. Richards, 182 Ohio App.3d 534, 2009-Ohio-2556, ¶ 21. We reiterate that Wiley is
not a party to the note and may not be obligated under the note for any sums. The
provisions of the note with respect to notice or any other topic have no bearing upon her,
and we instead focus on whether the mortgage conditioned the right to foreclose upon
notice to Wiley and whether such notice was, in fact, provided.
       {¶ 27} Examining the parties' agreement as contained in the mortgage, Wiley
signed the mortgage as a co-signer pursuant to provision 13 of the mortgage. She also is a
successor in interest of her mother, Davies, as contemplated in definition (Q) in the
mortgage. Moreover, in definition (B) of the mortgage she is identified as a borrower;
however, the parties agreed within the mortgage that she is not obligated on the note
which evidenced the loan for which Davies was the sole borrower. While we acknowledge
that provision 13 of the mortgage implies that a successor in interest of a "borrower" must
assume the borrower's obligations in writing to obtain the rights and benefits from the
mortgage, Wiley's status, whether as a co-signer, a successor in interest to a borrower, or a
borrower, is ambiguous because of the specific agreement between the parties that Wiley
is not obligated on the note. Where, as here, bargaining power is unequal between
contracting parties, ambiguities are construed against the drafters of the contracts.
                                                                                      13
No. 15AP-642
Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, ¶ 13. Thus, we
conclude that, even though the parties agreed that Wiley did not assume Davies'
obligation on the note, Wiley should have been considered a borrower for purposes of the
mortgage, including that she was entitled to receive the benefit of notice provisions set
forth in the mortgage.
       {¶ 28} The mortgage requires notice to borrowers prior to acceleration and
foreclosure as follows:

              22. Acceleration; Remedies. Lender shall give notice to
              Borrower prior to acceleration following Borrower's breach of
              any covenants or agreement in this Security Instrument. * * *
              The notice shall specify: (a) the default; (b) the action
              required to cure the default; (c) a date, not less than 30 days
              from the date the notice is given to Borrower, by which the
              default must be cured; and (d) that failure to cure the default
              on or before the date specified in the notice may result in
              acceleration of the sums secured by this Security Instrument,
              foreclosure by judicial proceeding and sale of the Property.
              The notice shall further inform Borrower of the right to
              reinstate after acceleration and the right to assert in the
              foreclosure proceeding the non-existence of a default or any
              other defense of Borrower to acceleration and foreclosure. If
              the default is not cured on or before the date specified in the
              notice, Lender at its option may require immediate payment
              in full of all sums secured by this Security Instrument without
              further demand and may foreclose this Security Instrument
              by judicial proceeding. Lender shall be entitled to collect all
              expenses incurred in pursuing the remedies provided in this
              Section 22, including, but not limited to, costs of title
              evidence.

(Ex. D at 14, Aff. in Support of Mot. for Summ. Jgmt.)
       {¶ 29} Provision 15 of the mortgage specifies the manner in which notice can be
given to a borrower:

              15. Notices. All notices given by Borrower or Lender in
              connection with this Security Instrument must be in writing.
              Any notice to Borrower in connection with this Security
              Instrument shall be deemed to have been given to Borrower
              when mailed by first class mail or when actually delivered to
              Borrower's notice address if sent by other means. Notice to
              any one Borrower shall constitute notice to all Borrowers
              unless Applicable Law expressly requires otherwise. * * *
                                                                                            14
No. 15AP-642
              Any notice to Lender shall be given by delivering it or by
              mailing it by first class mail to Lender's address stated herein
              unless Lender has designated another address by notice to
              Borrower.

(Emphasis added.) Id. at 12.
       {¶ 30} It is undisputed that only one notice letter was sent by first class mail in this
case by CitiMortgage and it was sent on January 31, 2014, to: Adella Davies, 7740 Walnut
Street, New Albany, OH 43054-9726. However, Adella Davies had died on April 1, 2013.
Although Wiley lived at 7740 Walnut Street, Wiley never received a letter or any
correspondence from CitiMortgage.
       {¶ 31} Deceased persons are not, in their own right, sui juris. "Because a party
must actually or legally exist 'one deceased cannot be a party to an action,' and a suit
brought against a dead person is a nullity." (Citations omitted.) Baker v. McKnight, 4
Ohio St.3d 125, 127 (1983). By analogy, one who is dead cannot be put on notice so as to
defend or proceed to protect his or her interest. Because Davies could not have been put
on notice, the attempt to provide only her with notice did not trigger the operation of the
mortgage provision that, "Notice to any one Borrower shall constitute notice to all
Borrowers." (Ex. D at 12, Aff. in Support of Mot. for Summ. Jgmt.) Wiley did not receive
notice before CitiMortgage attempted to foreclose on 7740 Walnut Street. CitiMortgage
failed to meet the conditions precedent to foreclosure as a matter of law. Richards at ¶ 21.
Since CitiMortgage was not entitled to enforce the mortgage against Wiley based on the
lack of notice to her, we sustain Wiley's first assignment of error.
       C. Second and Third Assignments of Error—Moot
       {¶ 32} Based on the fact that Wiley was not given proper notice, and because, to
the extent the complaint sought "legal" remedies, Wiley is not the proper party for any
deficiency beyond an action in rem as against the real estate in question, we reverse and
remand and, thus, we do not reach the second and third assignments of error.
IV.    CONCLUSION
       {¶ 33} Because we conclude that Davies, being deceased, could not validly have
been given notice and the record shows that notice of foreclosure was sent only to her
after she was deceased, we sustain Wiley's first assignment of error. Even though notice
to one borrower is notice to all under the terms of the mortgage, as a matter of law
                                                                                          15
No. 15AP-642
CitiMortgage could not provide notice to Davies after her death, and it did not provide
notice to Wiley prior to seeking to foreclose upon her property. In addition, to the extent
the complaint sought "legal" remedies, Wiley was not the proper defendant. Wiley's first
assignment of error is sustained, and the second and third assignments of error are moot.
It is the decision of this Court that the decision of the Franklin County Court of Common
Pleas is reversed with instructions to deny CitiMortgage's motion for summary judgment
and to grant Wiley's motion for summary judgment as it relates to the first assignment of
error.
                                                                    Judgment reversed;
                                                        cause remanded with instructions.

                                 HORTON, J., concurs.
                                  KLATT, J., dissents.
                              ______________________

KLATT, J., dissenting.
         {¶ 34} Because I would affirm the trial court's grant of summary judgment for
appellee, I respectfully dissent.
         {¶ 35} As a preliminary matter, I fail to see the need for the majority decision's
lengthy foray into the issue as standing. This issue was not raised by the parties and the
majority recognizes that appellee clearly has standing to assert its rights under the
mortgage.     The trial court also expressly stated in its decision granting summary
judgment that appellee cannot enforce a personal judgment against appellant because she
is not a party to the note. Therefore, the issue of standing has no bearing on the issues
raised in this appeal.
         {¶ 36} The resolution of appellant's first and second assignments of error turn on
whether appellee complied with the notice provisions in the mortgage prior to
accelerating the debt after default. It is undisputed that appellant and Ms. Davies are
both "borrowers" as defined under the mortgage. Nothing in the record refutes appellee's
evidence that it sent the written notice of default via first class mail to Ms. Davies at the
property address. Appellant does not contest that the notice of default sent to Ms. Davies
provided the information required by the mortgage and was sent to the proper address.
Rather, appellant contends that appellee was required to send a notice of default to her
personally to satisfy the condition precedent set forth in the mortgage for acceleration of
                                                                                                         16
No. 15AP-642
the debt. This contention is inconsistent with the express terms of the mortgage and the
case law in this district.
        {¶ 37} Paragraph 15 of the mortgage provides:

                15. Notices. All notices given by Borrower or Lender in
                connection with this Security Instrument must be in writing.
                Any notice to Borrower in connection with this Security
                Instrument shall be deemed to have been given to Borrower
                when mailed by first class mail or when actually delivered to
                Borrower's notice address if sent by other means. Notice to
                any one Borrower shall constitute notice to all Borrowers
                unless Applicable Law expressly requires otherwise. The
                notice address shall be the Property Address unless Borrower
                has designated a substitute notice address by notice to
                Lender.

(Aug. 26, 2014 Aff. in Support of Mot. for Summ. Jgmt., Ex. D at 11.)
        {¶ 38} Therefore, paragraph 15 of the mortgage states that any notice required by
the mortgage shall be deemed to have been given to the borrower when mailed by first
class mail to the property address.6 Proof that the notice was received is not required.
Moreover, notice to any one borrower constitutes notice to all borrowers.7 Appellant
concedes that Ms. Davies and appellant are both borrowers under the terms of the
mortgage. Because it is undisputed that appellee mailed the notice of default to Ms.
Davies by first class mail to the property address, appellant also received notice, and
therefore, the condition precedent was satisfied. Whether Ms. Davies received the notice,
or was capable of receiving the notice, is irrelevant. Case law from this district has
consistently upheld this interpretation of similar contract provisions. LSF6 Mercury REO
Invest. Trust Series, 2008-1 v. Locke, 10th Dist. No. 11AP-757, 2012-Ohio-4499 at ¶ 14
(delivery of the notice in the manner specified by the mortgage was completed pursuant to
paragraph 15 when mailed, and any failure to provide confirmation of delivery is
irrelevant); Regions Bank v. Seimer, 10th Dist. No. 13AP-542, 2014-Ohio-95, ¶ 21, citing
Wells Fargo Bank, N.A. v. Walker, 10th Dist. No. 09AP-947, 2010-Ohio-3698, ¶ 9 (co-
borrowers' averment that borrowers did not receive bank's notice of default is irrelevant

6 Appellant has not argued that she or Ms. Davies provided appellee with a substitute notice address for the
property address.
7 Appellant has not argued that any state or federal law prohibits or conflicts with this provision of the

mortgage.
                                                                                        17
No. 15AP-642
when the loan documents permit notice to be given by first class mail and bank submitted
an affidavit proving that notice was mailed to borrowers); United States Bank, N.A. v.
Weber, 10th Dist. No. 12AP-107, 2012-Ohio-6024, ¶ 14.
       {¶ 39} The contention that Ms. Davies was deceased when the notice was mailed,
and therefore, she arguably lacked the capacity to be sued, is also irrelevant. The issue
here is not whether Ms. Davies could be sued on the note and mortgage. Neither Ms.
Davies or her estate are parties in this case. Appellant's first and second assignments of
error challenge whether appellee satisfied the notice provision of the mortgage before it
accelerated the debt and foreclosed on the mortgage. As discussed above, under the terms
of the mortgage, appellee satisfied the notice provision when it mailed the notice to Ms.
Davies via first class mail to the property address. Locke. Under the terms of the
mortgage, it was unnecessary to send a separate notice to appellant. Therefore, I would
overrule appellant's first and second assignments of error.
       {¶ 40} Lastly, I would overrule appellant's third assignment of error because courts
have consistently recognized the power of MERS to serve as mortgagee and assign
mortgages as a nominee for lenders. Countrywide Home Loans Servicing, L.P. v. Shifflet,
3d Dist. No. 9-09-31, 2010-Ohio-1266; Deutsche Bank Natl. Trust Co. v. Greene, 6th Dist.
No. E-10-006, 2011-Ohio-1976; Bank of New York v. Dobbs, 5th Dist. No. 2009-CA-
000002, 2009-Ohio-4742. The reasoning set forth in these decisions is sound.
       {¶ 41} For all of these reasons, I respectfully dissent.
