[Cite as Wells Fargo Bank, N.A. v. Roehrenbeck, 2013-Ohio-5498.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WELLS FARGO BANK, N.A. JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 13 CA 29
MARY K. ROEHRENBECK
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 12 CV 0779
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 13, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SCOTT A. KING MARY K. ROEHRENBECK
THOMPSON HINE LLP PRO SE
10050 Innovation Drive, Suite 400 264 Isaac Tharp Street
Miamisburg, Ohio 45401 Pataskala, Ohio 43062
TERRANCE A. MEBANE
THOMPSON HINE LLP
41 South High Street, Suite 1700
Columbus, Ohio 43215
Licking County, Case No. 13 CA 29 2
Wise, J.
{¶1} Defendant-Appellant Mary K. Roehrenbeck appeals the judgment of the
Licking County Court of Common Pleas granting Plaintiff-Appellee Wells Fargo Bank,
NA’s motion for summary judgment.
STATEMENT OF THE CASE AND FACTS
{¶2} The facts in this case are as follows:
{¶3} On October 24, 2006, Appellant Mary K. Roehrenbeck executed a
promissory note (the "Note") in the principal amount of $217,183.00, plus interest at the
rate of 5.5% per year, payable to Beazer Mortgage Corporation ("Beazer Mortgage").
Beazer Mortgage specially indorsed the Note to American Brokers Conduit ("American
Brokers"), who specially indorsed it to Wells Fargo, who indorsed it in blank. Wells
Fargo has had possession of the original Note since 2006.
{¶4} On October 24, 2006, to secure payment of the Note, Appellant
Roehrenbeck also executed an open-end mortgage against the Property in favor of
Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Beazer
Mortgage, its successors and assigns.
{¶5} On March 7, 2012, MERS executed a notice of Assignment of Mortgage to
Wells Fargo.
{¶6} On June 6, 2012, Wells Fargo commenced this action to recover the
balance due on the Note and to foreclose the Mortgage.
{¶7} On July 6, 2012, Appellant Roehrenbeck filed an untimely answer.
{¶8} On July 10, 2012, Wells Fargo filed a motion for default judgment.
Licking County, Case No. 13 CA 29 3
{¶9} On July 12, 2012, the trial court granted a judgment in favor of Wells
Fargo.
{¶10} On August 6, 2012, Appellant Roehrenbeck filed a notice of appeal to this
Court, Case No. 2012 CA 00068.
{¶11} On August 20, 2012, the parties filed a joint motion to dismiss the appeal.
{¶12} On September 4, 2012, this Court entered an agreed order dismissing the
appeal.
{¶13} On September 13, 2012, Appellant Roehrenbeck filed a motion for leave
to file an amended Answer.
{¶14} On September 17, 2012, the trial court issued an Order vacating the
judgment.
{¶15} On October 24, 2012, the trial court held a hearing on Appellant
Roehrenbeck's motion for leave. That same day, the trial court issued an Entry granting
Appellant Roehrenbeck leave to file an amended answer.
{¶16} On November 13, 2012, Appellant Roehrenbeck filed her Amended
Answer and Counterclaim. The Counterclaim alleges that in January, 2007, Wells Fargo
began sending requests to Appellant with knowledge that it was not the "owner" of the
Note when it attempted to collect those payments. Appellant claims that Wells Fargo
misled her into believing that it was entitled to do so, which allegedly violated a fiduciary
duty that she claims Wells Fargo owed to her. The basis of the Counterclaim is that
Wells Fargo began collecting payments prior to MERS executing the notice of
Assignment of Mortgage, and that this was fraudulent. The Counterclaim asserts two
claims: (1) fraud; and (2) punitive damages.
Licking County, Case No. 13 CA 29 4
{¶17} On December 12, 2012, Wells Fargo filed a Motion to Dismiss the
Counterclaim.
{¶18} On January 7, 2013, Appellant Roehrenbeck filed her "Objection to Motion
to Dismiss."
{¶19} On January 14, 2013, the trial court issued a Judgment Entry, finding that
Wells Fargo's Motion "presents matters outside the pleadings," stating that the court
would treat the Motion as one for summary judgment, and instructing Wells Fargo to file
a supplemental memorandum and any Rule 56 evidence.
{¶20} On February 15, 2013, Wells Fargo filed a motion for extension of time to
file its supplemental memorandum.
{¶21} On February 28, 2013, Wells Fargo filed a Supplemental Memorandum.
{¶22} On March 11, 2013, Appellant Roehrenbeck filed a memorandum contra
to the Supplemental Memorandum.
{¶23} On March 12, 2013, the trial Court issued a Memorandum of Decision,
and on March 21, 2013, a Judgment Entry, dismissing the Counterclaim. The Judgment
Entry also granted Wells Fargo 75 days to file a dispositive motion on the Complaint.
{¶24} Defendant-Appellant now appeals, assigning the following errors for
review:
{¶25} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT
(SIC) TO PLAINTIFF, WELLS FARGO, WITHOUT ALLOWING DEFENDANT PROPER
TIME TO FILE A MEMORANDUM CONTRA TO PLAINTIFF'S SUPPLEMENTAL
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS COUNTERCLAIM.
Licking County, Case No. 13 CA 29 5
{¶26} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT
(SIC) TO PLAINTIFF, WELLS FARGO, WHEN THE BASIS OF PLAINTIFF'S
REASONING WAS INCORRECTLY FOCUSED ON UCC ARTICLE 3, FOR
NEGOTIABLE INSTRUMENTS, INSTEAD OF UCC ARTICLE 9, FOR SECURITY
INSTRUMENTS, AS A MATTER OF LAW.
{¶27} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGEMENT (SIC) TO PLAINTIFF, WELLS FARGO, WHEN THE AFFIDAVIT
PROVIDED DID NOT STATE A VALID DATE AS TO WHEN THE NOTE WAS
TRANSFERRED OR ASSIGNED TO PLAINTIFF
{¶28} “IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGEMENT (SIC) TO PLAINTIFF, WELLS FARGO, BECAUSE REASONABLE
MINDS CANNOT COME TO BUT ONE CONCLUSION.”
{¶29} “Summary Judgment Standard”
{¶30} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides,
in pertinent part:
{¶31} “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
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. * * * A summary judgment shall not be
rendered unless it appears from such evidence or stipulation and only therefrom, that
Licking County, Case No. 13 CA 29 6
reasonable minds can come to but one conclusion and that conclusion is adverse to the
party against whom the motion for summary judgment is made, such party being
entitled to have the evidence or stipulation construed most strongly in his favor.”
{¶32} Pursuant to the above rule, a trial court may not enter a summary
judgment if it appears a material fact is genuinely disputed. The party moving for
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 which 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, 1997-Ohio-259, citing
Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
{¶33} It is based upon this standard that we review appellant’s assignments of
error.
I.
{¶34} In her First Assignment of Error, Appellant argues that the trial court erred
in granting Plaintiff-Appellee an extension of time to file its supplemental memorandum
in support of its motion without granting Defendant-Appellant an extension of time to
respond.
Licking County, Case No. 13 CA 29 7
{¶35} Upon review, we find that when the trial court converted Appellee’s 12(B)
motion to dismiss to a Civ.R. 56 motion for summary judgment, the trial court set the
following briefing schedule:
{¶36} “Plaintiff shall file a supplemental motion and/or any Civ.R. 56 materials in
support of its motion on or before February 15, 2013. Defendant shall file a
memorandum contra and any supporting materials on or before March 1, 2013. Plaintiff
may file a reply on or before March 8, 2013. A non-oral hearing shall be set for March
11, 2013.” (See Judgment Entry, Jan. 14, 2013).
{¶37} The following day, February 15, 2013, Appellee moved the trial court for a
fourteen (14) day extension of time to file its supplemental memorandum in support,
which the trial court granted the same day.
{¶38} Appellee filed its supplemental memorandum on February 28, 2013, and
Appellant filed her Memorandum Contra on March 11, 2013. The trial court did not issue
its decision until March 12, 2013.
{¶39} As Appellant did not request additional time to respond and did, in fact, file
a response in this matter prior to the trial court’s ruling, we find Appellant’s argument to
be without merit.
{¶40} Appellant’s First Assignment of Error is overruled.
II., III., IV.
{¶41} As Appellant’s remaining three Assignments of Error challenge the trial
court’s decision granting Appellee’s motion to dismiss/motion for summary judgment,
we shall address them together.
Licking County, Case No. 13 CA 29 8
{¶42} Appellant’s counterclaim in this matter contained a claim for fraud,
claiming that Wells Fargo fraudulently represented that it was the person entitled to
collect under the Note. Appellant herein argues that Appellee’s reliance on UCC Article
3 was misplaced and that the affidavit in support of its motion failed to provide the date
of assignment of the note.
{¶43} Upon review, we find that the promissory note in question is a “negotiable
instrument” as defined in R.C. 1303.03(A), which states:
{¶44} “(A) Except as provided in divisions (C) and (D) of this section, “negotiable
instrument” means an unconditional promise or order to pay a fixed amount of money,
with or without interest or other charges described in the promise or order, if it meets all
of the following requirements:
{¶45} “(1) It is payable to bearer or to order at the time it is issued or first comes
into possession of a holder.
{¶46} “(2) It is payable on demand or at a definite time.
{¶47} “(3) It does not state any other undertaking or instruction by the person
promising or ordering payment to do any act in addition to the payment of money, …”
{¶48} Ohio's version of the Uniform Commercial Code governs who may enforce
a note. R.C. §1301.01 et seq. Article 3 of the UCC governs the creation, transfer and
enforceability of negotiable instruments, including promissory notes secured by
mortgages on real estate. Fed. Land Bank of Louisville v. Taggart, 31 Ohio St.3d 8, 10,
508 N.E.2d 152 (1987).1
1
R.C. §1301.01 was repealed by Am.H.B. No. 9, 2011 Ohio Laws File 9, effective June
29, 2011. That act amended the provisions of R.C. §1301.01 and renumbered that
section so that it now appears at R.C. 1301.201. Because R.C. §1301.201 only applies
Licking County, Case No. 13 CA 29 9
{¶49} Under R.C. §1301.01, “holder” means either of the following: “(a) if the
instrument is payable to bearer, a person who is in possession of the instrument; “(b) if
the instrument is payable to an identified person, the identified person when in
possession of the instrument.”
{¶50} As set forth above, Appellant executed a promissory note payable to
Beazer Mortgage, Beazer specially indorsed the Note to American Brokers Conduit,
who specially indorsed it to Wells Fargo, who indorsed it in blank.2 Wells Fargo has had
possession of the original Note since 2006. Wells Fargo is therefore the holder of the
Note which entitles it to enforce the Mortgage securing its repayment.
{¶51} Further, we find no requirement that indorsements on negotiable
instruments be dated.
{¶52} Based on the foregoing, we find that the trial court did not err in granting
summary judgment in favor of Appellee and dismissing Appellant’s counterclaim in this
matter.
to transactions entered on or after June 29, 2011, we apply R.C. §1301.01 to this
appeal.
2
R.C. 1303.25(B) states: “ ‘Blank indorsement’ means an instrument 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.”
Licking County, Case No. 13 CA 29 10
{¶53} Appellant’s Second, Third and Fourth Assignments of Error are overruled.
{¶54} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Delaney, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. PATRICIA A. DELANEY
JWW/d 1120
Licking County, Case No. 13 CA 29 11
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WELLS FARGO BANK, N.A. :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MARY K. ROEHRENBECK :
:
Defendant-Appellant : Case No. 13 CA 29
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
Costs assessed to Appellant.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. PATRICIA A. DELANEY