[Cite as Bank of Am., NA v. Wise, 2014-Ohio-3091.]


                                      COURT OF APPEALS
                                   FAIRFIELD COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



BANK OF AMERICA, N.A.                                   JUDGES:
                                                        Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                              Hon. John W. Wise, J.
                                                        Hon. Craig R. Baldwin, J.
-vs-
                                                        Case No. 14 CA 11
STEVEN L. WISE, et al.

        Defendants-Appellants                           OPINION




CHARACTER OF PROCEEDING:                             Civil Appeal from the Court of Common
                                                     Pleas, Case No. 12 CV 557


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              July 14, 2014



APPEARANCES:

For Plaintiff-Appellee                               For Defendants-Appellants

J. BRADLEY LEACH                                     BRIAN K. DUNCAN
GREGORY H. MELICK                                    BRYAN D. THOMAS
LUPER, NEIDENTHAL & LOGAN                            DUNCAN LAW GROUP
50 West Broad Street, Suite 1200                     600 South High Street, Suite 100
Columbus, Ohio 43215                                 Columbus, Ohio 43215
[Cite as Bank of Am., NA v. Wise, 2014-Ohio-3091.]


Wise, J.

        {¶1} Appellants Steven Wise, Ricki Wise, James Lyons, Judy Lyons and Brian

 Urbanski appeal the decision of the Court of Common Pleas, Fairfield County, which

 granted summary judgment to appellee Bank of America, NA, in a foreclosure lawsuit.

                               STATEMENT OF THE FACTS AND CASE

        {¶2} On September 23, 2008, Appellants Steven Wise, James Lyons and Judy

 Lyons executed a Promissory Note to United Wholesale Mortgage. United Wholesale

 Mortgage subsequently indorsed the Note to Countrywide Bank, FSB, who, in turn,

 indorsed the Note in blank. Bank of America, NA, is in possession of the Note.

        {¶3} The mortgage in this matter was executed on September 23, 2008, by

 Ricki Wise, James Lyons and Judy Lyons, in favor of MERS, as nominee for United

 Wholesale Mortgage. MERS subsequently assigned the Mortgage to Bank of America,

 NA, on August 30, 2011.

        {¶4} Due to a default on the note and mortgage, Bank of America, NA, filed its

 Complaint in Foreclosure on August 30, 2010.

        {¶5} Appellant Ricki Wise, who is the ex-wife of Appellant Steven Wise, filed a

 pro se Answer requesting she be dismissed from the foreclosure action, stating that

 she had “nothing financially to do with the property”.

        {¶6} On October 25, 2012, Bank of America filed a motion for summary

 judgment against Appellant Ricki Wise for the purpose of foreclosing her dower interest

 as she was only a signer on the mortgage and not the note.

        {¶7} On March 8, 2013, the trial court granted summary judgment in favor of

 Bank of America against Ricki Wise.
Fairfield County, Case No. 14 CA 11                                               3


      {¶8}   On June 17, 2013, the Bank filed a Motion for Summary Judgment against

Appellants Steven Wise, James Lyons, Judy Lyons and Brian Urbanski as Trustee,

and an Affidavit in Support of Summary Judgment.

      {¶9} On July 1, 2013, Appellants filed a combined Motion to Strike

Plaintiff’s Motion for Summary Judgment; Motion for 56(F) continuance; and

Memorandum Contra Plaintiff’s Motion for Summary Judgment.

      {¶10} The trial court granted the requested continuance and rescheduled the

non-oral hearing date on the summary judgment motion.

      {¶11} Appellants now appeal, assigning the following error for review:

                                  ASSIGNMENT OF ERROR

      {¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE

GENUINE ISSUES OF MATERIAL FACT AND PLAINTIFF WAS NOT ENTITLED TO

JUDGMENT AS A MATTER OF LAW.”

                    STANDARD OF REVIEW - SUMMARY JUDGMENT

      {¶13} Our standard of review is de novo, and as an appellate court, we must

stand in the shoes of the trial court and review summary judgment on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35, 506 N.E.2d 212(1987).

      {¶14} Civil Rule 56(C) states in part:

      {¶15} “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
Fairfield County, Case No. 14 CA 11                                                 4


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.”

         {¶16} Summary judgment is a procedural device to terminate litigation, so it must

be awarded cautiously with any doubts resolved in favor of the non-moving party.

Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 N.E.2d 138(1992).

         {¶17} The party seeking 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 that 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, 674 N.E.2d 1164(1997), citing Dresher v. Burt (1996), 75 Ohio St.3d

280, 662 N.E.2d 264(1996).

         {¶18} This appeal shall be considered in accordance with the aforementioned

rules.

                                                I.

         {¶19} Appellants’ sole Assignment of Error argues that the trial court erred in

granting summary judgment in favor of Bank of America. We disagree.

         {¶20} In support of its motion for summary judgment, Appellee Bank of America

submitted to the trial court a copy of the Note, indorsed in blank, a copy of the

mortgage, and a copy of the assignment from the original mortgagee, executed prior to
Fairfield County, Case No. 14 CA 11                                              5


the filing of the foreclosure action. Appellee also supported its motion with an affidavit

stating that it had possession of the Note, currently and at the time of the filing of the

action, that it is the assignee of the Mortgage, that Appellants were in default, and that

the balance owed on the note was $188,553.51.

                                    Holder in Due Course

      {¶21} Appellants on appeal, argue for the first time that Bank of America was not

entitled to summary judgment because it was not a holder in due course on the Note.

‘It is well established that a party cannot raise any new issues or legal theories for the

first time on appeal.’ ” Carrico v. Drake Construction, 5th Dist. Stark App. No. 2005 CA

00201, 2006–Ohio–3138, ¶ 37, quoting Dolan v. Dolan, Trumbull App. Nos. 2000–T–

0154 and 2001–T0003, 2002–Ohio–2440, ¶ 7. See also, Cincinnati Insurance

Company v. Colelli & Associates, Inc. (June 17, 1998), Wayne App. No. 97CA0042

       {¶22} R.C. §1303.31 provides:

       {¶23} (A) “Person entitled to enforce” an instrument means any of the

       following persons:

       {¶24} (1) The holder of the instrument;

       {¶25} (2) A non-holder in possession of the instrument who has the rights

       of a holder;

       {¶26} (3) A person not in possession of the instrument who is entitled to

       enforce the instrument pursuant to Section 1303.38 or division (D) of

       section 1303.58 of the Revised Code.
Fairfield County, Case No. 14 CA 11                                            6


       {¶27} (B) A person may be a “person entitled to enforce” the instrument

       even though the person is not the owner of the instrument or is in

       wrongful possession of the instrument.

       {¶28} R.C. §1301.201, provides,

       {¶29} (21) “Holder” means:

       {¶30} (a) The person in possession of a negotiable instrument that is

       payable either to bearer or to an identified person that is the person in

       possession;

       {¶31} (b) The person in possession of a negotiable tangible document of

       title if the goods are deliverable either to bearer or to the order of the

       person in possession; or

       {¶32} (c) The person in control of a negotiable electronic document of

       title.

      {¶33} The note attached to the complaint was endorsed in blank

converting the note to bearer paper. R.C. §1303.25(B) reads,

     {¶34} “Blank indorsement” means an indorsement 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.

      {¶35} Because the note is payable to the bearer, negotiation of the note is

accomplished by transfer of possession alone. There is no dispute Bank of America is
Fairfield County, Case No. 14 CA 11                                               7


the current holder of the note, indorsed in blank. Further, there is no dispute the Bank

is the holder of the mortgage.

                                     Notice of Acceleration

      {¶36} Appellants also argue that Appellee failed to assert that it followed the

proper procedure in accelerating the balance due on the Note.

      {¶37} Civ.R. 9(C) provides: “In pleading the performance or occurrence of

conditions precedent, it is sufficient to aver generally that all conditions precedent have

been performed or have occurred.” By contrast, “[a] denial of performance or

occurrence shall be made specifically and with particularity.” (Emphasis added.) Id.

Conditions precedent that are not denied in the manner provided by Civ.R. 9(C) are

deemed admitted. Fifth Third Mtge. Co. v. Orebaugh, 12th Dist. No. CA2012–08–153,

2013–Ohio–1730, ¶ 29, citing First Financial Bank v. Doellman, 12th Dist. No.

CA2006–02–029, 2007–Ohio–222, ¶ 2; see also Civ.R. 8(D); Huntington v. Popovec,

7th Dist. No. 12 MA 119, 2013–Ohio–4363, ¶ 15.

      {¶38} Upon review of the Complaint in this matter, we find that at Paragraph 8,

Appellee averred:

      {¶39} “Plaintiff states that, with respect to the Note and Mortgage, it has satisfied

all conditions precedent that are required before Plaintiff may declare a default,

accelerate the balance due to Plaintiff, or commence this foreclosure action.”

      {¶40} This is sufficient under Civ.R. 9(C) to shift the burden to Appellants to

assert failure to provide notice of acceleration.

      {¶41} In their Answer, Appellants did not allege that they did not receive notice of

default or that notice was not properly sent prior to acceleration of the loan.
Fairfield County, Case No. 14 CA 11                                            8


      {¶42} Because Appellants failed to state with the specificity required by Civ.R.

9(C), precisely which conditions precedent Bank of America failed to comply with

before filing the instant foreclosure action, they are barred from later contesting the

noncompliance in their brief in opposition to summary judgment, and consequently,

now on appeal. See, e.g., Satterfield v. Adams Cty./Ohio Valley School Dist., 4th Dist.

No. 95CA611, 1996 WL 655789, *5 (Nov. 6, 1996) (where defendant failed to

specifically deny performance of a condition precedent in its answer pursuant to Civ.R.

9(C) compliance was deemed admitted and defendant could not subsequently raise

the issue on appeal.) See also Huntington, supra at ¶ 16 (homeowner was barred from

contesting bank's performance of conditions precedent where she failed to file an

answer.)

                                   Assumption of the Risk

      {¶43} Finally, Appellants attempt to argue that Appellee assumed the risk in this

case due to its knowledge of the default status of the note and mortgage in this case at

the time of the assignment.

      {¶44} The Third District Court of Appeals has rejected the argument that the

assumption the risk doctrine may apply to a foreclosure action:

      {¶45} “ Next, the Richisons contend that there is a genuine issue of material fact

as to whether the assumption of risk doctrine applies in a foreclosure action. We

disagree.

      {¶46} “Determining whether the assumption of risk doctrine applies in a

foreclosure action is an issue of law. The Richisons fail to cite any authority applying

the assumption of risk doctrine in a foreclosure action, and a review of Ohio case law
Fairfield County, Case No. 14 CA 11                                              9


yields no support for this assertion. Because the Richisons fail to support their

argument with authority as required by App.R. 16(A)(7), we decline to address it.

App.R. 12(A)(2). We summarily note, however, that the assumption of the risk doctrine

is primarily, if not exclusively, a defense against a claim of negligence. Therefore, we

find that without authority in support of their argument, the assumption of the risk

doctrine is not a defense in a foreclosure action.” Flagstar Bank, F.S.B. v. Richison, 3rd

Dist. Union No. 14–12–01, 2012–Ohio–3198, ¶ 17–18.

      {¶47} In the present case, Appellants fail to cite to any authority applying the

assumption of the risk doctrine to a foreclosure action. We agree that the assumption

of the risk doctrine is relevant to a negligence action, not to the defense of a

foreclosure action

      {¶48} Based on the foregoing, the trial court correctly concluded no genuine

issue of material fact exists concerning the Bank’s possession of the note. Therefore,

the trial court did not err in granting summary judgment to the Bank.
Fairfield County, Case No. 14 CA 11                                      10


      {¶49} Appellants’ Assignment of Error is overruled.

      {¶50} For the forgoing reasons, the judgment of the Court of Common Pleas of

Fairfield County, Ohio, is affirmed.


By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.
