Nationstar Mtge., L.L.C. v. West

[Cite as Nationstar Mtge., L.L.C. v. West, 2014-Ohio-735.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

NATIONSTAR MORTGAGE, LLC

Plaintiff-Appellee

v.

THOMAS M. WEST, et al.

Defendants-Appellants

Appellate Case Nos. 25813/25837

Trial Court Case No. 2010-CV-7223

(Civil Appeal from
(Common Pleas Court)
...........

OPINION

Rendered on the 28th day of February, 2014.

...........

MICHAEL L. WIERY, Atty. Reg. No. 0068898, RACHEL M. KUHN, Atty. Reg. No. 0090220,
P.O. Box 96696, 30455 Solon Road, Solon, Ohio 44139
Attorneys for Plaintiff-Appellee-Nationstar Mortgage, LLC

THERAN J. SELPH, Atty. Reg. No. 0079376, LINCOLN A. FIELDING, Atty. Reg. No. 0085396,
P.O. Box 341318, Columbus, Ohio 43234, DARRYL GORMLEY, Atty. Reg. No. 67595, 2450
Edison Boulevard, P.O. Box 968, Twinsburg, Ohio 44087, MICHAEL L. WIERY, Atty. Reg. No.
0068898, P.O. Box 96696, 30455 Solon Road, Solon, Ohio 44139
Attorneys for Plaintiff-Appellee-Aurora Loan Services, LLC

DOUGLAS M. TROUT, Atty. Reg. No. 0072027, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Defendant-Appellee-Montgomery County Treasurer

PATRICK DUNPHY, Atty. Reg. No. 17827, 30 Wyoming Street, Dayton, Ohio 45409
 2

Attorney for Defendants-Appellees-Jean West and William West
THOMAS WEST, 4244 Fulton Avenue, Moraine, Ohio 45439
Defendant-Appellant-Pro Se

.............

WELBAUM, J.

{¶ 1} In this consolidated appeal, Defendant-Appellant, Thomas West, appeals pro se

from a judgment entry and decree of foreclosure rendered in favor of Plaintiff-Appellee,

Nationstar Mortgage, LLC. (Nationstar). West contends that the trial court erred in granting

Nationstar’s motion for summary judgment because genuine issues of material fact exist

regarding: (1) whether Nationstar is the equitable party in interest; and (2) whether Nationstar is

the holder of the mortgage. West additionally contends that the trial court lacked jurisdiction

over the foreclosure action, and that the court erred in denying West his right to a trial by jury.

{¶ 2} We conclude that the trial court did not err in rendering judgment in favor of

Nationstar. As a successor in interest, Nationstar had standing to pursue the foreclosure claim,

and the trial court had jurisdiction over the action. The undisputed facts also indicate that West

failed to make payments required under the mortgage. Furthermore, West was not entitled to a

trial by jury, because the trial court properly rendered summary judgment on Nationstar’s claims.

Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In December 2002, Thomas West’s mother, Anna Marie Bland, signed and

notarized a transfer-on-death deed, conveying property she owned at 4244 Fulton Avenue,

Moraine, Ohio, to her son, Thomas West. Bland was the sole owner of the property at the time
 3

of the conveyance. Bland subsequently passed away in October 2003. West did not file the

deed with the Montgomery County Recorder until after Bland’s death. After Bland’s death,

West also probated a will that bequeathed the property to him, but he never obtained a certificate

of transfer for the property.

{¶ 4} On February 2, 2005, West signed a promissory note agreeing to pay Pinnacle

Financial Corporation (“Pinnacle”) the sum of $50,000, at an interest rate of 7.5% per year. At

the same time, West also signed a mortgage agreement, granting Mortgage Electronic

Registration Systems, Inc. (“MERS”) a security interest in the property at 4244 Fulton Avenue,

solely as nominee for Pinnacle and its successors and assigns.

{¶ 5} The promissory note contained endorsements from Pinnacle to Impac Funding

Corporation (“Impac”), and from Impac to Aurora Loan Services, LLC (“Aurora”). In addition,

MERS assigned the mortgage to Aurora on September 10, 2010.

{¶ 6} West paid on the note until April 1, 2010, when he defaulted on his payments.

Aurora then filed a complaint for foreclosure and request for declaratory judgment against West

and Bland’s heirs on September 10, 2010. Aurora alleged that it was the holder of the

promissory note signed by West, and that West’s mortgage had been assigned to it. Aurora

further alleged that West owed $47,254.60 plus interest at 7.5% per annum from April 1, 2010.

In addition, Aurora asked the trial court to declare West the owner in fee simple of the property

located at 4244 Fulton Avenue, based on the mutual mistake of West and Bland in the filing of

the transfer on death deed.

{¶ 7} West filed an answer and counterclaim, pro se, in October 2010. West alleged

in the counterclaim that Aurora did not have standing to pursue the claim, and had committed

civil and criminal fraud. West also demanded a jury trial. In June 2011, the trial court
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sustained Aurora’s motion to dismiss the counterclaim, based on the counterclaim’s failure to set

forth operative facts of the alleged fraud. The court additionally denied West’s request for a jury

trial. West then filed a plethora of pleadings, including an abortive attempt to remove the case

to federal court.

{¶ 8} In June 2012, the trial court granted West’s motion to file an amended answer

and counterclaim. In the amended counterclaim, West alleged that he was incompetent when

the original note and mortgage were signed, due to acute mental, drug, and alcohol issues.

Subsequently, in August 2012, Aurora filed a motion to substitute Nationstar as plaintiff, based

on the fact that the note and mortgage had been assigned to Nationstar on July 20, 2012. The

trial court granted the motion to substitute, and then granted Nationstar’s motion to dismiss

West’s counterclaim. In this regard, the court held that a statement that a loan officer took

advantage of West’s demeanor was insufficient to state a claim under R.C. 1345.02(A) and (F);

R.C. 1345.031(13); and R.C. 1322.07(B). The court further concluded that West failed to state a

claim for emotional distress, and that West was not entitled to a jury trial.

{¶ 9} In February 2013, Nationstar filed a motion for summary judgment. In

conjunction with the motion, Nationstar submitted deposition transcripts of the following

individuals: Thomas West; Kevin Cartwright, the notary who signed the closing documents for

West’s loan; and Steve Maloney, the loan officer who processed the loan. In addition,

Nationstar submitted the affidavit of Edward Hyne, who authenticated the promissory note,

mortgage, assignments of note and mortgage, and the loan history for West’s loan. The affidavit

and other documents indicated that West had defaulted on the loan and owed Nationstar

$47,254.60, plus interest at 7.5% per annum from April 1, 2010, plus costs, fees, advances to

secure the property, and attorney fees. Nationstar also filed a motion for default judgment
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against other parties who had not appeared in the action or who had disclaimed any interest in the

property.

{¶ 10} West responded to the motion for summary judgment, contending that there

were issues of fact regarding whether the note was illegal from the outset, whether the original

assignment of the loan was valid, whether Nationstar had unclean hands, and whether the transfer

on death deed was lawful. However, West failed to attach any evidence in support of his

theories. West also filed a motion to dismiss the case, based on the trial court’s alleged lack of

jurisdiction.

{¶ 11} On June 10, 2013, the trial court sustained Nationstar’s motion for summary

judgment and overruled West’s motion to dismiss. In particular, the court held that Nationstar

was a real party in interest and had standing to bring the action. The court also noted that West

failed to submit any evidence, such as an affidavit, to indicate that the note and mortgage were

unlawfully obtained due to his intoxication. On the same day, the court also filed a judgment

and decree in foreclosure, and declared that West was the sole fee owner of the property. The

court then filed an amended judgment and decree in foreclosure on June 26, 2013. West filed

notices of appeal from each judgment of foreclosure, and the appeals have been consolidated.

II. Did the Trial Court Err in Granting Summary Judgment?

{¶ 12} Two of West’s assignments of error relate to the same issue, and will be

considered together. West’s First Assignment of Error, raised in his August 7, 2013 brief, states

that:

The Trial Court Erred in Granting Plaintiff/Appellee’s Motion for

Summary Judgment because Plaintiff/Appellee Failed to Demonstrate that It Is
 6

Entitled to Judgment as a Matter of Law; the Unrefuted Civ.R. 56 Evidence

Demonstrates, at the Very Least, that a Genuine Issue of Material Fact Exists as to

Whether Plaintiff/Appellee is the Equitable Party in Interest.

{¶ 13} West’s Third Assignment of Error, raised in his September 30, 2013 brief,

states that:

The Trial Court Erred in Entering an Amended Judgment and Decree in

Foreclosure Where Plaintiff/Appellee Failed to Show that It Was Entitled to

Judgment as a Matter of Law; Pursuant to Unrefuted Civ.R. 56 Evidence

Submitted in this Case that Established a Genuine Issue of Material Fact as to

Whether Plaintiff/Appellee Was [an] Equitable Party in Interest.

{¶ 14} Under these assignments of error, West argues that Aurora was not the owner or

holder of the note and mortgage when the complaint was filed, and that the subsequent

substitution of Nationstar as the real party in interest did not cure Aurora’s lack of standing at the

beginning of the action. In this regard, West contends that the chain of mortgage assignments is

defective, and that Aurora/Nationstar failed to attach sworn or certified copies of the mortgage

and numerous mortgage assignments to its motion for summary judgment.

{¶ 15} The law regarding summary judgments is well-established. “A trial court may

grant a moving party summary judgment pursuant to Civ.R. 56 if there are no genuine issues of

material fact remaining to be litigated, the moving party is entitled to judgment as a matter of

law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the

nonmoving party, who is entitled to have the evidence construed most strongly in his favor.”

(Citation omitted.) Smith v. Five Rivers MetroParks, 134 Ohio App.3d 754, 760, 732 N.E.2d

422 (2d Dist.1999). “We review summary judgment decisions de novo, which means that we
 7

apply the same standards as the trial court.” (Citations omitted.) GNFH, Inc. v. W. Am. Ins.

Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.)

{¶ 16} “To properly support a motion for summary judgment in a foreclosure action, a

plaintiff must present evidentiary-quality materials showing: (1) the movant is the holder of the

note and mortgage, or is a party entitled to enforce the instrument; (2) if the movant is not the

original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all

conditions precedent have been met; and (5) the amount of principal and interest due.”

Wright–Patt Credit Union, Inc. v. Byington, 6th Dist. Erie No. E-12-002, 2013-Ohio-3963, ¶ 10,

citing U.S. Bank, N.A. v. Coffey, 6th Dist. Erie No. E-11-026, 2012-Ohio-721, ¶ 26. (Other

citation omitted.) Accord JP Morgan Chase Bank, N.A. v. Massey, 2d Dist. Montgomery No.

25459, 2013-Ohio-5620, ¶ 20.

{¶ 17} In the case before us, Nationstar submitted an affidavit indicating that its

records contained a note and mortgage between Pinnacle and West, and that Nationstar was the

holder of the note, the assignee of the mortgage, and the servicer of West’s loan. We have

previously indicated that this is sufficient to show assignment by transfer of possession alone.

Massey at ¶ 21, citing PHH Mtge. Corp. v. Unknown Heirs of Cox, 2d Dist. Montgomery No.

25617, 2013-Ohio-4614, ¶ 7, fn. 1.

{¶ 18} In addition, the affidavit attached to Nationstar’s motion identified and

authenticated the relevant documents, including the note, mortgage, and assignments of the note

and mortgage. The affidavit also indicated that West was in default on the note, and that he had

been given notice of the default. Finally, the loan history and amount due were established by

the affidavit and supporting documents.

{¶ 19} West failed to offer any evidence in compliance with Civ.R. 56(E) that would
 8

refute Nationstar’s evidence. Furthermore, West admitted at his deposition that he had signed

the note and mortgage, that he had received the funds from the loan, and that he had defaulted on

the payments. See Deposition of Thomas West, taken on January 22, 2013, pp. 42, 45-47, 67,

79, 84, and 93-94.

{¶ 20} Accordingly, there were no genuine issues of material fact regarding

Nationstar’s entitlement to summary judgment, and the trial court did not err in rendering

summary judgment in favor of Nationstar on the complaint for foreclosure. West’s First

Assignment of Error, filed on August 7, 2013, and his Third Assignment of Error, filed on

September 30, 2013, are, therefore, overruled.

III. Did the Trial Court Err in Overruling West’s Motion to Dismiss

for Lack of Jurisdiction?

{¶ 21} Again, a number of West’s assignments of error relate to the same issue, and

will be considered together. West’s Second Assignment of Error, raised in his August 7, 2013

brief, states that:

The Trial Court Erred in Not Granting Defendant/Appellant’s May 16,

2013 Motion to Dismiss for Lack of Jurisdiction with Remedy Demand, Where

the Manifest Weight of the Evidence Establishes that the Federal National

Mortgage Association, (Fannie Mae), Acquired Ownership of the Note and

Mortgage on August 1, 2005, with Both, Plaintiff/Appellee and

Plaintiff/Appellee’s Counsel Admitting to the Same Fact. (Plaintiff Brief in

Opposition filed May 24, 2013, Page 3, C).

{¶ 22} West’s First Assignment of Error, raised in his September 30, 2013 brief, states
 9

that:

The Trial Court Erred in Entering an Amended Judgment and Decree in

Foreclosure, and/or Entering any Judgments in the Case, Where the Record

Plainly Provides that the Plaintiff Failed to Lawfully or Properly Invoke the

Subject Matter Jurisdiction of the Court of Common Pleas for Montgomery

County, Ohio, in the First Instant, [sic] as Evident [sic] by the Plaintiff’s

Complaint.

{¶ 23} Finally, West’s Fourth Assignment of Error, raised in his September 30, 2013

brief, states that:

The Trial Court Erred in Entering an Amended Judgment and Decree in

Foreclosure Whereby Finding Plaintiff(s)/Appellee[s] Were the Holder of the

Instruments, Contrary to the Laws of this State, to wit: R.C. 5301.23(A) Mortgage

Effective Dates, R.C. 5301.232(E)(3) “Holder of the Mortgage” and R.C.

1303.32(A). Holder in Due Course.

{¶ 24} Under these assignments of error, West contends that Aurora lacked standing to

file the foreclosure action because Fannie Mae, rather than Aurora, was the owner of the note and

mortgage. West further argues that the subsequent assignment to Nationstar and the substitution

of Nationstar as a plaintiff did not remedy the defect.

{¶ 25} Generally, we review issues of subject-matter jurisdiction de novo. See, e.g.,

Yu v. Zhang, 175 Ohio App.3d 83, 2008-Ohio-400, 885 N.E.2d 278, ¶ 16 (2d Dist.). In the

context of standing and jurisdiction, the Supreme Court of Ohio held in Fed. Home Loan Mortg.

Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, that:

[S]tanding is required to invoke the jurisdiction of the common pleas
 10

court, and therefore it is determined as of the filing of the complaint. Thus,

receiving an assignment of a promissory note and mortgage from the real party in

interest subsequent to the filing of an action but prior to the entry of judgment

does not cure a lack of standing to file a foreclosure action. Id. at ¶ 3.

{¶ 26} However, Schwartzwald does not apply to the matter before us, because Aurora

had a right to enforce the note and mortgage at the time the foreclosure was filed. Aurora was

not required to show that it owned the note.

{¶ 27} Initially, we note that if a note is negotiable under R.C. 1303.03(A), R.C. Chapter

1303 will apply. Bank of Am., N.A. v. Pasqualone, 10th Dist. Franklin No. 13AP-87,

2013-Ohio- 5795, ¶ 27-28. “Ohio courts * * * have generally held that a note secured by a

mortgage is a negotiable instrument.” (Citations omitted.) Id. at ¶ 29.

{¶ 28} In Pasqualone, the court of appeals applied the criteria in R.C. 1303.03(A) to

decide whether the note in question was a negotiable instrument. The court concluded that the

note was negotiable, because it contained a promise to pay the lender a set amount, plus interest,

provided for monthly payments, and specified the due date for payment in full. Id. at ¶ 30. In

the case before us, West’s note meets the same criteria under R.C. 1303.03(A), and is, therefore,

a negotiable instrument subject to R.C. Chapter 1303.

{¶ 29} Where a note is governed by R.C. Chapter 1303, the issue of ownership of the

note is not necessarily the critical factor. Under R.C. Chapter 1303, “the question of who has an

ownership interest in a note is different from the question of who is entitled to enforce a note.

Sometimes the person entitled to enforce the note and the owner of the note are one and the

same. Sometimes they are not. Indeed, R.C. 1303.31(B) states that ‘[a] person may be a

“person entitled to enforce” the instrument even though the person is not the owner of the
 11

instrument or is in wrongful possession of the instrument.’ Furthermore, a plaintiff is not

required to plead that it was the ‘owner’ of the note and mortgage in its complaint.” Pasqualone

at ¶ 23, citing U.S. Bank Natl. Assn. v. Mitchell, 6th Dist. Sandusky No. S-10-043,

2012-Ohio-3732, ¶ 16, and Bank of New York Mellon Trust Co. v. Fox, 6th Dist. Ottawa No.

OT-11-046, 2012-Ohio-6245, ¶ 15. “ ‘An assertion of ownership rights does not indicate

entitlement to enforce an instrument, nor does a lack of ownership necessarily prevent a person

from being entitled to enforce an instrument.’ ” Pasqualone at ¶ 23, quoting Mitchell at ¶ 16.

{¶ 30} In Pasqualone, the Tenth District Court of Appeals discussed in detail the

difference between a debtor’s interest in the ownership of a note and a debtor’s interest in who

has the right to enforce the note. The court explained that if “ ‘the maker pays someone other

than a “person entitled to enforce” – even if that person physically possesses the note the maker

signed – the payment generally has no effect on the obligations under the note.’ ” (Emphasis

sic.) Pasqualone, 10th Dist. Franklin No. 13AP-87, 2013-Ohio- 5795, at ¶ 24, quoting In re

Veal, 450 B.R. 897, 910 (Bankr.9th Cir.2011). (Other citations omitted.) Thus, “in a

promissory note default case, once the court determines that a plaintiff is the person entitled to

enforce the note, and judgment is entered against a defendant on that basis, the defendant is

generally protected from being subject to subsequent claims for default on the same note to the

extent payment is made to the person entitled to enforce the note whether by the proceeds of the

mortgage foreclosure sale or otherwise. Therefore, a debtor's concern with who is the person

entitled to enforce a note is paramount.” Pasqualone at ¶ 24.

{¶ 31} In contrast, “the question of ownership of a note is not the debtor's concern * *

*.” (Emphasis sic.) Id. at ¶ 25. In this regard, the Tenth District Court of Appeals stressed in

Pasqualone that:
 12

“This distinction [between an owner of a note and a person entitled to enforce a

note] further recognizes that the rules that determine who is entitled to enforce a

note are concerned primarily with the maker of the note. They are designed to

provide for the maker a relatively simple way of determining to whom the

obligation is owed and, thus, whom the maker must pay in order to avoid

defaulting on the obligation. UCC § 3-602(a), (c) [R.C. 1303.67(A)]. By

contrast, the rules concerning transfer of ownership and other interests in a note

identify who, among competing claimants, is entitled to the note's economic value

(that is, the value of the maker's promise to pay). Under established rules, the

maker should be indifferent as to who owns or has an interest in the note so long

as it does not affect the maker's ability to make payments on the note. Or, to put

this statement in the context of this case, the Veals [as the makers of the note]

should not care who actually owns the note – and it is thus irrelevant whether the

note has been fractionalized or securitized – so long as they do know who they

should pay. Returning to the patois of Article 3, so long as they know the

identity of the ‘person entitled to enforce’ the note, the Veals should be content.”

Pasqualone at ¶ 25, quoting Veal at 912-13.

{¶ 32} As was noted in Pasqualone, R.C. 1303.31(B) stresses this concept, by stating

that “[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.”

{¶ 33} Accordingly, in the case before us, the fact that Fannie Mae owned the note is

not relevant; the relevant issues are whether Aurora had the right to enforce the note when it filed

suit, and whether Nationstar subsequently obtained the right to enforce the note.
 13

Unquestionably, both entities had the right to enforce the note at the appropriate times.

{¶ 34} R.C. 1303.31 (A) provides that a “[p]erson entitled to enforce” an instrument

includes:

(1) The holder of the instrument;

(2) A nonholder in possession of the instrument who has the rights of a

holder;

(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.

{¶ 35} R.C. 1301.201(A)(21)(a) defines a “holder” as “[t]he person in possession of a

negotiable instrument that is payable either to bearer or to an identified person that is the person

in possession * * *.”

{¶ 36} When suit was filed, Aurora was in possession of a negotiable instrument that

was originally made payable to Pinnacle. However, Pinnacle assigned the note to Impac, which

in turn assigned the note to Aurora before suit was filed. Aurora, therefore, was a person

entitled to enforce the note. Nationstar subsequently became a holder of the note, because it was

in possession of the note, which had been assigned to it by Aurora on July 20, 2012.

Accordingly, Aurora had standing to bring the action, giving rise to the trial court’s jurisdiction,

and Nationstar was the proper party to maintain the action once the note had been assigned to it

by Aurora.

{¶ 37} West has also challenged the chain of assignment of the mortgage. However, in

this regard, we have previously held that formal assignment is not required, because a “mortgage

automatically follows the note it secures.” (Citations omitted.) PHH Mtge. Corp., 2d Dist.
 14

Montgomery No. 25617, 2013-Ohio-4614, at ¶ 7. Thus, “the transfer of a note automatically

results in equitable assignment of a mortgage securing the note.” (Citation omitted.) Id.

{¶ 38} Accordingly, the trial court did not err in concluding that it had jurisdiction over

the action. West’s Second Assignment of Error, filed on August 7, 2013, and his First and

Fourth Assignments of Error, filed on September 30, 2013, are, therefore, overruled.

IV. Did the Trial Court Err in Rejecting

West’s Jury Demand?

{¶ 39} West’s Second Assignment of Error, raised in his September 30, 2013 brief,

states as follows;

The Trial Court Erred in Entering an Amended Judgment and Decree in

Foreclosure, Where the Record Provides that the Defendant/Appellant Was

Denied His Demanded Right to a Trial by Jury on the Plaintiff’s Demand for

Personal Judgment against Defendant/Appellant.

{¶ 40} Under this assignment of error, West contends that the trial court erred in

refusing to allow him to have this matter tried to a jury. When the trial court dismissed West’s

amended counterclaim, the court also stated that West was not entitled to a jury trial with respect

to the foreclosure claim.

{¶ 41} We noted in Gem City Savings Assn. v. Morrow, 2d Dist. Montgomery No.

7501, 1982 WL 3716 (Apr. 14, 1982), that “[t]he law of Ohio has long been established that a

real estate foreclosure is an equitable action and not subject to a trial by jury.” Id. at *1, citing

Natl. Bank v. Wheelock, 52 Ohio St. 534, 40 N.E. 636 (1895), and Carr v. Loan Corp., 148 Ohio

St. 533, 76 N.E.2d 389 (1947). Accord Rokakis v. W. Res. Leasing Co., 8th Dist. Cuyahoga No.
 15

95058, 2011-Ohio-1926, ¶ 8.

{¶ 42} Nonetheless, “[a]n exception to the general rule that a party is not entitled to a

jury trial in foreclosure actions applies when there is a claim for a personal judgment against a

party.” Rokakis at ¶ 9, citing Sec. Fed. Sav. & Loan of Iowa v. King, 8th Dist. Cuyahoga Nos.

44864 and 45071, 1983 WL 4645 (Aug. 25, 1983), and Grapes v. Barbour, 58 Ohio St. 669, 675,

49 N.E. 306 (1898). Because the complaint in the case before us requested a judgment against

West for $47,254.60, West would have been entitled to a jury trial with regard to the money

judgment. Despite this fact, a jury trial was not warranted because the trial court correctly

granted summary judgment to Nationstar. Bank of New York Mellon v. Ackerman, 2d Dist.

Montgomery No. 24390, 2012-Ohio-956, ¶ 21.

{¶ 43} In this vein, beyond concluding that summary judgment was warranted on

West’s default, the trial court also rejected West’s argument that the note and mortgage were

unlawfully obtained due to his state of intoxication. West has not assigned a specific

assignment of error in connection with this point, but he does contend in his brief that the

original loan was procured fraudulently because he was of unsound mind when he signed the

mortgage and note, due to his negative physical and mental demeanor.

{¶ 44} After considering this point, the trial court concluded that West had failed to set

forth specific facts creating a genuine issue of material fact concerning his contention. We

agree with the trial court.

{¶ 45} R.C. 1303.35(A) contains certain defenses to enforcement of notes. As

pertinent here, the statute provides that:

Except as stated in division (B) of this section, the right to enforce the

obligation of a party to pay an instrument is subject to all of the following:
 16

(1) A defense of the obligor based on any of the following:

***

(b) Duress, lack of legal capacity, or illegality of the transaction

that, under other law, nullifies the obligation of the obligor * * *.

{¶ 46} As the movant for summary judgment, Nationstar did not have “ ‘the burden to

prove its case and disprove the opposing party's case as well.’ ” (Emphasis sic.) Wells Fargo

Minnesota, N.A. v. Finley, 2d Dist. Greene No. 2007-CA-09, 2008-Ohio-982, ¶ 12, quoting Todd

Development Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 13.

Thus, Nationstar was not required to disprove West’s alleged defense.

{¶ 47} Notably, West did not dispute that he had signed the promissory note and

mortgage agreement, nor did he dispute that he had received the loan proceeds. Furthermore,

although West claimed to have been intoxicated on a daily basis at the time he entered into the

loan, he failed to present any evidence as required by Civ.R. 56(E) to substantiate his claims. In

this regard, Civ.R.56(E) provides that:

When a motion for summary judgment is made and supported as provided in this

rule, an adverse party may not rest upon the 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. If the party does not so respond, summary judgment, if appropriate, shall be

entered against the party.

{¶ 48} West failed to present such evidence. In fact, contrary to West’s allegations in

his pleadings that he was intoxicated on a daily basis, records identified at West’s deposition

indicate that West told others that he was drinking only two to three beers per week around the
 17

time he signed the note and mortgage. See West Deposition, Ex. P. The other evidence

presented also indicated that nothing out of the ordinary was perceived by the individuals who

processed the loan and conducted the closing. See Depositions of Steve Maloney and Kevin

Cartwright, filed on February 22, 2013.

{¶ 49} Based on the preceding discussion, West’s Second Assignment of Error, raised

in his September 30, 2013 brief, is without merit and is overruled.

V. Conclusion

{¶ 50} All of West’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

.............

HALL, J., concurs.
DONOVAN, J., concurs in judgment only.

Copies mailed to:

Michael L. Wiery
Rachel M. Kuhn
Theran J. Selph
Lincoln A. Fielding
Darryl Gormley
Douglas M. Trout
Patrick Dunphy
Thomas West
Hon. Michael W. Krumholtz