[Cite as Wells Fargo Bank, N.A. v. Roehrenbeck, 2016-Ohio-1273.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WELLS FARGO BANK, NA JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 15-CA-61
MARY K. ROEHRENBECK
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Common
Pleas, Court, Case No. 14-CV-0191
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 23, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SCOTT A. KING MARY ROEHRENBECK, PRO SE
TERRY W. POSEY, JR. 264 Isaac Tharp St.
Thompson Hine LLP Pataskala, Ohio 43062
10050 Innovation Drive
Suite 400
Miamisburg, Ohio 45342
Licking County, Case No. 15-CA-61 2
Hoffman, P.J.
{¶1} Defendant-appellant Mary K. Roehrenbeck appeals the August 5, 2015
Judgment Entry and Decree in Foreclosure entered by the Licking County Court of
Common Pleas, which granted summary judgment in favor of plaintiff-appellee Wells
Fargo Bank, N.A. (“Wells Fargo”), and issued a decree of foreclosure.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 24, 2006, Appellant executed a promissory note in favor of
Beazer Mortgage Corporation in the amount of $217,183.00, for real property located at
264 Isaac Tharp Street, Pataskala, Licking County, Ohio. To secure payment of the Note,
Appellant executed an open-ended mortgage against the Property in favor of Mortgage
Electronic Registration Systems, Inc. (“MERS”), as nominee for Beazer, its successors
and assigns. The Mortgage contained a legal description of the Property and indicated
the lot number as “89”. Beazer subsequently indorsed the Note to American Brokers
Conduit, which indorsed it to Appellee, which indorsed it in blank. MERS executed a
Notice of Assignment of Mortgage to Appellee on March 7, 2012.
{¶3} Appellant defaulted under the terms of the Note and Mortgage and Appellee
accelerated the debt. On February 28, 2014, Appellee filed its complaint, seeking to
recover the balance due under the Note and to foreclosure the Mortgage. Appellant filed
an answer on May 23, 2014.
{¶4} On July 9, 2014, Appellant filed Defendant’s Notice to the Court Requesting
Plaintiff to Produce Documents and Admissions. The filing bore a certificate of service,
however, the certificate did not reflect whether Appellant had provided Appellee with an
electronic copy of the requests. Upon leave of court, Appellee filed an amended
Licking County, Case No. 15-CA-61 3
complaint on October 16, 2014. The amended complaint added a reformation claim,
seeking to reform the description of the Property from lot number 89 to lot number 79.
{¶5} Appellant filed an answer to the amended complaint on November 17, 2014,
and a motion to dismiss the amended complaint on January 13, 2015. The trial court
denied Appellant’s motion to dismiss via Judgment Entry filed February 17, 2015.
{¶6} Appellee filed a motion for summary judgment on May 21, 2015, as well as
a supplemental motion on July 9, 2015. Appellant filed a memorandum in opposition on
June 22, 2015. In her memorandum in opposition, Appellant argued Appellee failed to
timely respond to her request for admissions. Appellant further asserted because
Appellee’s affidavit in support of summary judgment authenticated the Mortgage as a
“true and accurate” copy, the claim for reformation should fail. Finally, Appellant
maintained Appellee “admitted that they received full payment for the Note, multiple
times” due to Appellee’s failure to respond to her request for admissions.
{¶7} Via Memorandum of Decision issued July 14, 2015, the trial court granted
summary judgment in favor of Appellee. The trial court issued a Judgment Entry and
Decree in Foreclosure on August 5, 2015. The trial court found the Note was secured by
the Mortgage as a first lien on the Property. The trial court further found a mutual mistake
in the Mortgage which identified the Property as Lot 89 instead of Lot 79, and reformed
the Mortgage to reflect the correct description.
{¶8} It is from the August 5, 2015 entry Appellant appeals, raising the following
assignments of error:
Licking County, Case No. 15-CA-61 4
{¶9} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT
TO PLAINTIFF, WELLS FARGO, BECAUSE GENUINE ISSUES OF MATERIAL FACT
EXIST.
{¶10} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT
TO PLAINTIFF, WELLS FARGO, BECAUSE PLAINTIFF/APPELLEE DID NOT PROVE
STANDING.”
I, II
{¶11} In her first assignment of error, Appellant maintains the trial court erred in
granting summary judgment in favor of Wells Fargo as genuine issues of material fact
exist. In her second assignment of error, Appellant contends the trial court erred in
granting summary judgment as Wells Fargo failed to prove standing. We disagree with
both assertions.
{¶12} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996–Ohio–211:
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any material
fact remains 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 viewing such evidence most strongly
in favor of the nonmoving party, that conclusion is adverse to the party
against whom the motion for summary judgment is made. State ex. rel.
Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
Licking County, Case No. 15-CA-61 5
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d
466, 472, 364 N.E.2d 267, 274.
{¶13} As an appellate court reviewing summary judgment motions, we must stand
in the shoes of the trial court and review summary judgments on the same standard and
evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (1987).
{¶14} Appellant submits the trial court erred in granting summary judgment to
Wells Fargo as a genuine issue of material fact exists as to standing. Appellant explains,
by failing to respond to her request for admissions, Wells Fargo “demonstrated that [it]
agreed with the claims” and by its “own admissions” acknowledged it did not have
standing. Brief of Appellant at 5. Appellant presented these facts, which she contends
were deemed admitted due to the failure of Wells Fargo to respond to her request for
admissions, throughout the course of the proceedings and, in particular, in her
memorandum contra Wells Fargo’s motion for summary judgment. Wells Fargo counters
Appellant failed to electronically serve it with a copy of the request for admissions, and as
a consequence of such failure, no responses were due to Appellant. Wells Fargo adds
because Appellant’s request for admissions were not properly filed, the facts deemed
admitted by its failure to respond were not properly before the trial court.
{¶15} Assuming, arguendo, Appellant electronically served Wells Fargo with a
copy of the request for admissions and the admissions were deemed admitted due to
Wells Fargo’s failure to respond, we, nonetheless, find the trial court did not err in granting
summary judgment to Wells Fargo.
{¶16} “In no sense does [Civil] Rule 36 supersede [Civil] Rule 56. The basic rules,
to which we are already accustomed, determining when summary judgment lies, remain
Licking County, Case No. 15-CA-61 6
controlling. Civil Rule 56 specifies the kind and method of support required to support
summary judgment.” State Farm v. Valentine (1971), 29 Ohio App.2d 174, 182, 279
N.E.2d 630. Appellant was required to verify Appellee’s alleged failure to respond to her
discovery requests via affidavit if she intended to use the alleged admissions as evidence
to refute Wells Fargo’s motion for summary judgment. Wells Fargo’s alleged failure to
respond to her request for admissions was not a substitute for Appellant having to submit
evidentiary material pursuant to Civ. R. 56 in support of memorandum contra. See,
Zimmerman v. Fischer (Oct. 14, 1987), Hamilton App. No. C-860624. Having failed to
bring the admissions to the trial court’s attention through an affidavit the trial court had no
obligation to consider the purportedly unanswered request for admissions as evidence at
the summary judgment stage.
{¶17} Furthermore, we find Wells Fargo had standing to bring the instant action.
Appellant claims Wells Fargo did not have standing because it did not suffer any injury
from Appellant’s failure to make payments under the Note and Mortgage due to the
securitization of the Note and, as well as PMI and FHA Housing and Urban Development
insurance on the Note and Mortgage. Neither securitization nor the availability of
insurance can extinguish a borrower’s obligations under a note and mortgage. See,
Dauenhauer v. Bank of N.Y. Mellon (6th Cir. 2014), 562 F. App. 473, 480; Henkels v. JP
Morgan Chase (D. Ariz. June 14, 2011), No. CV-11-0299-HPH-JAT, 2011 WL 2357874.
{¶18} Appellant’s first and second assignments of error are overruled.
Licking County, Case No. 15-CA-61 7
{¶19} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur