[Cite as Green Tree Servicing, L.L.C. v. Brandt, 2015-Ohio-4636.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
GREEN TREE SERVICING LLC, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-L-137
- vs - :
THOMAS BRANDT, et al., :
Defendant-Appellant. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 14 CF 000359.
Judgment: Affirmed.
Jason A. Whitacre and Laura C. Infante, The Law Offices of John D. Clunk Co., L.P.A.,
4500 Courthouse Boulevard, Suite 400, Stow, OH 44224 (For Plaintiff-Appellee).
Bruce M. Broyles, 5815 Market Street, Suite 2, Youngstown, OH 44512 (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Thomas Brandt, appeals the Judgment Entry of the
Lake County Court of Common Pleas, foreclosing his interest in the subject property in
favor of plaintiff-appellee, Green Tree Servicing LLC. The issue before this court is
whether the presence of a void or cancelled indorsement to a note, without more,
creates a genuine issue of material fact with respect to the note’s negotiability or its
holder’s standing to enforce the note. For the following reasons, we affirm the
Judgment of the court below.
{¶2} On February 13, 2014, Green Tree Servicing filed a Complaint in
Foreclosure against Brandt, Jane Doe, Third Federal Savings and Loan Association of
Cleveland, PNC Bank National Association, and the Lake County Treasurer. Green
Tree Servicing alleged (First Count) that it was entitled to enforce a promissory note,
“upon which there remains unpaid the sum of $132,000.00 plus interest.” Furthermore,
“by reason of a default in payment of the said note and the mortgage securing the
same, [Green Tree Servicing] has declared said debt to be immediately due and
payable.”
{¶3} A copy of the note was attached to the Complaint. The note was executed
on June 19, 2007, in favor of MortgageIT, Inc. The last page of the note carried an
undated indorsement “without recourse” to Wells Fargo Bank, NA. This indorsement
was struck through, initialed, and marked “VOID.” Attached to the note was an allonge,
which carried undated indorsements without recourse from MortgageIT to Countrywide
Bank, FSB, from Countrywide Bank FSB to Countrywide Home Loans, Inc., and from
Countrywide Home Loans, Inc. to blank.
{¶4} Green Tree Servicing also alleged (Second Count) that it was the holder
of the mortgage securing the indebtedness and entitled to foreclosure of the same.
{¶5} A copy of the mortgage and its various assignments was attached to the
Complaint. The mortgage was executed on June 19, 2007, in favor of MortgageIT, Inc.
and conveyed to it the premises identified as 7605 Jeremy Avenue, Mentor, Ohio. On
September 27, 2012, the mortgage was assigned from Mortgage Electronic Registration
Systems Inc., “acting solely as nominee for Mortgageit, Inc.,” to Bank of America, N.A.
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On May 17, 2013, the mortgage was assigned from Bank of America, N.A. to Green
Tree Servicing.
{¶6} On May 7, 2014, Brandt filed his Answer to Complaint.
{¶7} On October 30, 2014, Green Tree Servicing filed a Motion for Summary
Judgment against Brandt and a Motion for Default Judgment against the remaining
defendants.
{¶8} In support of the Motion for Summary Judgment, the Affidavit of Danilo P.
Alfonso, Foreclosure Specialist for Green Tree Servicing, was attached. Alfonso stated
that Green Tree Servicing “has had possession of the promissory note and mortgage
prior to the filing of the Complaint and continuously since,” and that copies of the
promissory note and mortgage were true and accurate.
{¶9} No response in opposition to the Motion for Summary Judgment was filed.
{¶10} On December 8, 2014, the trial court issued a Judgment Entry, granting
the Motions for Summary and Default Judgments, and ordering the defendants’ “equity
of redemption and dower * * * in and to said premises * * * foreclosed.”
{¶11} On December 29, 2014, Brandt filed a Notice of Appeal. On appeal,
Brandt raises the following assignment of error:
{¶12} “[1.] The trial court erred in granting summary judgment to Appellee when
there was a genuine issue of material fact still in dispute.”
{¶13} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the
evidence shows “that there is no genuine issue as to any material fact” to be litigated,
(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from
the evidence * * * that reasonable minds can come to but one conclusion and that
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conclusion is adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence * * * construed most strongly in the
party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an
appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “Under this standard, the reviewing court
conducts an independent review of the evidence before the trial court and renders a
decision de novo, i.e., as a matter of law and without deference to the conclusions of
the lower court.” (Citation omitted.) RBS Citizens, N.A. v. Struharik, 11th Dist. Trumbull
No. 2014-T-0111, 2015-Ohio-2612, ¶ 11.
{¶14} On appeal, Brandt maintains that a genuine issue of material fact exists as
to whether Green Tree Servicing is entitled to enforce the note: the presence of the
voided indorsement to Wells Fargo Bank in the note is inconsistent with the
indorsements in the allonge which culminate in a blank indorsement effectively
rendering the note “bearer paper,” since the indorsements in the allonge do not include
a transfer from Wells Fargo Bank. In particular, Brandt asserts that “[t]here is no
provision in Ohio law for * * * cancelling an endorsement” by marking it with an “X” and
writing the word “void.” “[W]ithout any evidence before the trial court to explain the
voided endorsement,” the possibility exists that Wells Fargo Bank is the proper party to
enforce the note and the trial court erred by construing the evidence to exclude this
possibility. Appellant’s brief at 5.
{¶15} Brandt’s position is refuted by this court’s decisions in Beal Bank S.S.B. v.
Elzy, 11th Dist. Trumbull No. 2013-T-0095, 2014-Ohio-3279, and M & T Bank v. Strawn,
11th Dist. Trumbull No. 2013-T-0040, 2013-Ohio-5845. These cases stand for the
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proposition that a void or cancelled indorsement, without more, does not create a
genuine issue of material fact as to whether the holder of the note is entitled to enforce
the same.
{¶16} In Strawn, the note contained three indorsements: “The first two—an
endorsement to Countrywide Home Loans, Inc. and a blank endorsement from
Countrywide Home Loans, Inc.—are stamped, ‘VOID.’ The third endorsement is from
Countrywide to [M & T Bank]. None of the endorsements are dated.” 2013-Ohio-5845,
at ¶ 3. Summary judgment was granted in favor of M & T Bank. This court rejected
Strawn’s argument that the presence of the void indorsements called into question
either the negotiability of the note or the holder’s standing to enforce the note. Id. at ¶
21 (“[a]ppellant does not cite to any law that indicates the presence of voided
endorsements on the face of a note renders a subsequent negotiation invalid”) and ¶ 26
(“the presence of voided endorsements does not create a genuine issue of fact in the
face of the evidentiary material establishing appellee as the holder of the note”).
{¶17} In Elzy, the trial court denied summary judgment on the grounds “there
was a question of material fact as to whether Beal was entitled to enforce the note
based upon an endorsement from Aames to Bankers Trust Company of California, N.A.
that was crossed out with a handwritten ‘cancelled[,]’” but concluded, following a bench
trial, that Beal was entitled to enforce the instrument. 2014-Ohio-3279, at ¶ 5 and 7.
On appeal, the Elzys maintained “that Beal should have been required to present
evidence of the circumstances surrounding the use of an ‘X’ and the word ‘cancelled.’”
Id. at ¶ 15. Citing to Strawn, this court reaffirmed that the existence of the cancelled
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indorsement did not affect or otherwise create a factual issue regarding “Beal’s status
as a holder of the note.” Id.
{¶18} Likewise, we conclude that the void indorsement to Wells Fargo Bank
does not create a genuine issue of material fact as to the negotiability of the note or
Green Tree Servicing’s standing to enforce it. To void an act is to render it without legal
effect. The only reasonable interpretation of the stricken indorsement to Wells Fargo
Bank is that the negotiation was without legal effect. The chain of indorsements
originating from MortgageIt in the allonge were valid. Brandt has cited neither law nor
facts to the contrary. As the indorsement has been rendered a nullity, we need not
resolve the issue raised by Brandt of whether it was a “special indorsement” or an
“anomalous indorsement.”
{¶19} The sole assignment of error is without merit.
{¶20} For the foregoing reasons, the Judgment Entry of foreclosure rendered by
the Lake County Court of Common Pleas is affirmed. Costs to be taxed against
appellant.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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