[Cite as Wells Fargo Bank, N.A. v. Thatcher, 2013-Ohio-5828.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
WELLS FARGO BANK, N.A. : OPINION
SUCCESSOR BY MERGER TO WELLS
FARGO HOME MORTGAGE, INC. f.k.a. :
NORWEST MORTGAGE, INC., CASE NO. 2013-L-030
:
Plaintiff-Appellee,
:
- vs -
:
DONNA MARIE THATCHER, et al.,
:
Defendant-Appellant.
:
Civil Appeal from the Lake County Court of Common Pleas, Case No. 11CF001391.
Judgment: Affirmed.
Jennifer E. Powers and April A. Brown, Lerner Sampson & Rothfuss, 120 East Fourth
Street, Suite 800, P.O. Box 5480, Cincinnati, OH 45202, and Scott A. King and Terry
W. Posey, Jr., Thompson Hine, LLP, Austin Landing 1, 10050 Innovation Drive, Suite
400, Dayton, OH 45342 (For Plaintiff-Appellee).
David N. Patterson, 33579 Euclid Avenue, Willoughby, OH 44094-3199 (For
Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Donna Marie Thatcher, appeals from the judgment of the Lake
County Court of Common Pleas entering summary judgment in favor of appellee, Wells
Fargo Bank, N.A. Successor by merger to Wells Fargo Home Mortgage, Inc. f.k.a.
Norwest Mortgage, Inc. (“Wells Fargo”). We affirm the judgment of the trial court.
{¶2} In October 1998, appellant, together with her now-deceased husband,
John Thatcher, entered into a loan agreement with Norwest Mortgage, Inc. whereby
Norwest agreed to lend the Thatchers $73,000 in exchange for the execution of a
promissory note and the filing of a mortgage. The mortgage encumbered the subject
real estate and the agreement was reduced to writing in the form of a promissory note
and a mortgage. The loan documents were executed and the mortgage was
subsequently recorded in the Lake County Recorder’s Office.
{¶3} In April 2000, Norwest changed its name to Wells Fargo Home Mortgage,
Inc. (“WFHMI”). And WFHMI merged into Wells Fargo in August 2004.
{¶4} In June 2011, Wells Fargo filed its complaint in foreclosure. The
complaint alleged appellant defaulted under the terms of the note and the mortgage
securing the same. The complaint further pleaded that Wells Fargo had complied with
all conditions precedent in the original loan instrument thereby entitling it to foreclose
upon the mortgage. Wells Fargo further attached documents describing Norwest’s
name change to WFHMI, and WFHMI’s merger into Wells Fargo.
{¶5} Appellee filed an answer that set forth various affirmative defenses; none,
however, specifically addressed the notice of default on the loan. And, the answer did
not contest Wells Fargo’s compliance with all conditions precedent in the loan.
{¶6} Wells Fargo filed a motion for summary judgment and attached an affidavit
of Susan Garrison, a “Vice President Loan Documentation for Wells Fargo Bank, N.A.
successor by merger to Wells Fargo Home Mortgage, Inc.” Garrison averred her
affidavit was based upon a “personal review of business records for the [Thatcher] loan”
and those records are “compiled and recorded as part of Wells Fargo’s regularly
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conducted business activity at or near the time of the occurrence.” Garrison further
averred the loan not paid under the terms of the note and mortgage and the account
was therefore accelerated. The affidavit described the amount due through February
28, 2012, as well as the interest due through the date of default. And, finally, attached
to the affidavit, Garrison included copies of documents demonstrating Norwest’s name
change to WFHMI and the subsequent merger of WFHMI with Wells Fargo.
{¶7} Appellant’s memorandum in opposition to Wells Fargo’s motion for
summary judgment asserted: (1) Wells Fargo failed to satisfy the notice clause in the
mortgage and therefore violated a condition precedent, and (2) Wells Fargo failed to
attach any payment history to illustrate appellant’s alleged default. Wells Fargo filed a
reply to appellant’s memorandum, arguing appellant failed to specifically assert her
denial of Wells Fargo’s performance of any conditions precedent in her answer in
violation of Civ.R. 9(C). And, furthermore, the Garrison affidavit was sufficient to
demonstrate appellant was in default and the amount due with interest.
{¶8} After considering the parties’ relative positions, the trial court entered
summary judgment in Wells Fargo’s favor. Appellant appeals asserting the following
assignment of error:
{¶9} “Reviewing the appellee’s motion for summary judgment de novo, the
record is clear and convincing that the trial court erred to the prejudice of appellant by
granting appellee’s motion for summary judgment in favor of appellee on the foreclosure
complaint.”
{¶10} Summary judgment is proper where (1) there is no genuine issue of
material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter
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of law; and (3) it appears from the evidence that reasonable minds can come to but one
conclusion, and, viewing the evidence in the non-moving party's favor, that conclusion
favors the movant. See e.g. Civ.R. 56(C). When considering a motion for summary
judgment, the trial court may not weigh the evidence or select among reasonable
inferences. Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121 (1980). Rather, all
doubts and questions must be resolved in the non-moving party's favor. Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 359 (1992). An appellate court reviews a trial court’s
entry of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105 (1996).
{¶11} Under her assignment of error, appellant first asserts the trial court erred
in granting summary judgment because genuine issues of material fact exist regarding
whether Wells Fargo established itself as the real party in interest. Appellant contends
Wells Fargo does not have an interest in the subject mortgage because, in its view, the
note was severed from the mortgage at its origination. And, when the note was
transferred from Norwest, to WFHMI, to Wells Fargo, appellants assert, the mortgage
did not follow. We do not agree.
{¶12} We first note that appellant did not raise the standing issue before the trial
court. In the past, the Supreme Court of Ohio held that a “[l]ack of standing challenges
the capacity of a party to bring an action, not the subject matter jurisdiction of the court.”
(Citations and footnote omitted.) State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 77,
(1998). Hence, a standing or real party in interest defense to a foreclosure was
considered waived, if not timely asserted before the trial court. See Mid-State Trust IX v.
Davis, 2d Dist. Champaign No. 07-CA-31, 2008-Ohio-1985, ¶56.
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{¶13} Recently, however, in the context of a mortgage foreclosure action, the
Ohio Supreme Court concluded that standing is jurisdictional and is determined when a
lawsuit is commenced. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d
13, 2012-Ohio-5017, ¶24. Because standing is a jurisdictional requirement, the
complaint must be dismissed if the plaintiff lacks standing. Id. at ¶ 40. Moreover,
because standing concerns the subject matter jurisdiction of the court, standing is an
issue that cannot be waived and may be raised at any time, even after judgment. BAC
Home Loans Servicing, L.P. v. Meister, 11th Dist. Lake No. 2012-L-042, 2013-Ohio-873,
¶6, citing Byard v. Byler, 74 Ohio St.3d 294, 296 (1996). With these points in mind, we
shall proceed and address appellant’s preliminary argument.
{¶14} Garrison’s affidavit demonstrates that Wells Fargo, the successor in
interest to Norwest Mortgage, which later changed its name to WFHMI, is the holder of
both the note and the mortgage at issue. Moreover, documentation attached to the
Garrison affidavit demonstrate that Wells Fargo obtained an interest in the note in 2004
and therefore had standing to invoke the jurisdiction of the lower court when it filed suit
in 2011. See Schwartzwald, supra, at ¶21, ¶22, and ¶28. Appellant’s first argument
therefore lacks merit.
{¶15} Appellant next argues the trial court erred in granting Wells Fargo
summary judgment because it failed to establish satisfaction of all conditions precedent
in the mortgage. We do not agree.
{¶16} Appellant signed the mortgage as a “borrower.” Pursuant to the
agreement, she was entitled to advance notice prior to Wells Fargo acceleration
following appellant’s breach of any conditions. “Where a prior notice of default and/or
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acceleration is required by a provision in a note or mortgage instrument, the provision of
notice is a condition precedent subject to Civ.R. 9(C).” First Financial Bank v.
Doellman, 12th Dist. Butler No. CA2006-02-029, 2007-Ohio-222, ¶20.
{¶17} Civ.R. 9 governs “pleading special matters.” 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. A denial
of performance or occurrence shall be made specifically and with particularity.”
{¶18} In this case, Wells Fargo, in its complaint, stated generally that it had
complied with all conditions precedent and, as a result, met the requirements of Civ.R.
9(C). Appellant, however, did not specifically or particularly deny Wells Fargo’s
performance or occurrence of compliance. Indeed, appellant did not even generally
claim that Wells Fargo had failed to comply with the notice provision in the acceleration
clause. Where a plaintiff generally pleads that a condition precedent has been satisfied,
a general denial of performance of conditions is not sufficient to place performance of
the conditions precedent in issue. Doellman, supra. When a plaintiff meets its
obligations under Civ.R. 9(C), but a defendant fails to deny compliance in the manner
prescribed by Civ.R. 9(C), compliance is deemed admitted. Id. citing Lewis v. Wal-Mart,
Inc, 10th Dist. Franklin No. 93AP-121, 1993 Ohio App. LEXIS 3920 (Aug.12 1993).
Because appellant failed to meet her obligations under the special pleading
requirements of Civ.R. 9(C), Wells Fargo’s compliance with the notice provision was
conceded. Wells Fargo was therefore entitled to judgment as a matter of law on this
issue.
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{¶19} For her final argument, appellant contends Wells Fargo failed to produce
sufficient evidence regarding the status and balance of the account. Appellant argues
Wells Fargo’s failure to attach a payment history to its motion for summary judgment
establishing delinquency precluded the trial court from entering summary judgment. We
do not agree.
{¶20} Preliminarily, there is no requirement that a party seeking a foreclosure
submit a payment history to demonstrate entitlement to summary judgment. Deutsche
Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶40.
Rather, an affidavit establishing a loan is in default is sufficient to demonstrate
entitlement to summary judgment where there is no evidence controverting the affiant’s
averments. See e.g. Cent. Mortg. Co. v. Elia, 9th Dist. Summit No. 25505, 2011-Ohio-
3188, ¶7.
{¶21} As discussed above, Wells Fargo submitted Garrison’s affidavit in support
of its motion. In her affidavit, Garrison averred she had personal knowledge of
appellant’s account; that the account was in default; the default was not cured; and the
acceleration clause was triggered pursuant to the agreement. Garrison further set forth
the specific amount due on the loan, including the principal balance as well as the
interest. Appellant did not dispute the evidential quality of the affidavit and did not
provide evidence that would controvert Garrison’s averments regarding the status or
balance of the account.
{¶22} In Wachovia Bank v. Jackson, 5th Dist. Stark No. 2010-CA-00291, 2011-
Ohio-3203, the court held that in order to properly support a motion for summary
judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials
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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. Id. ¶40-45.
{¶23} As discussed above, Wells Fargo, via the Garrison affidavit, provided
evidence to satisfy all the foregoing criteria. We therefore hold Wells Fargo set forth
sufficient evidence to support its motion for summary judgment. And, because appellee
failed to meet its reciprocal burden of submitting evidence that would create a genuine
issue of material fact for trial, we conclude the trial court did not err in awarding Wells
Fargo summary judgment as a matter of law.
{¶24} Appellant’s assignment of error is without merit.
{¶25} For the reasons discussed in this opinion, the judgment of the Lake
County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents.
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