[Cite as Bank of New York Mellon v. Zayed, 2020-Ohio-4058.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
BANK OF NEW YORK MELLON, :
Plaintiff-Appellee, : No. 108623 v. :
NADIA ZAYED, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 13, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-869601
Appearances:
Laura C. Infante and Ashley E. Mueller, for appellee.
Herman Law, L.L.C., and Edward F. Herman, for appellants.
FRANK D. CELEBREZZE, JR., J.:
Defendants-appellants, Nadia and Mahmoud Zayed, bring the instant
appeal challenging the trial court’s judgment in a foreclosure action commenced
by plaintiff-appellee, Bank of New York Mellon fka1 Bank of New York, as Trustee
1 Formerly known as. for the Certificateholders CWABS, Inc., Asset-Backed Notes, Series 2006-SD3
(hereinafter “Bank of New York Mellon”). Appellants argue that the trial court
erred by granting summary judgment in favor of Bank of New York Mellon because
genuine issues of material fact existed regarding whether Bank of New York Mellon
has standing to bring the foreclosure action. After a thorough review of the record
and law, this court affirms.
I. Factual and Procedural History
On January 26, 2001, appellants, as borrowers, executed a promissory
note to America’s Wholesale Lender, as lender, in the amount of $273,600. The
promissory note was secured by a mortgage executed on January 26, 2001, by
appellants for the property at issue, located at 27725 Hilliard Boulevard, Westlake,
Ohio 44145. The mortgage listed appellants as borrowers, and identified Mortgage
Electronic Registration Systems, Inc. (“MERS”) as nominee for lender, America’s
Wholesale Lender.
In February 2003, the mortgage was assigned from MERS to “Bank of
New York, As Trustee, c/o Countrywide Home Loans, Inc.” A “corrective
assignment of mortgage” was recorded in July 2008. Under the corrective
assignment, the mortgage was assigned from MERS as nominee for America’s
Wholesale Lender to Bank of New York, as Trustee. In July 2008, the mortgage
was assigned from Bank of New York, as Trustee, to plaintiff-appellee, “Bank of
New York as Trustee for the Certificateholders CWABS, Inc. Asset-[B]acked
[N]otes, Series 2006-SD3.” Appellants entered into a loan adjustment agreement in January 2014
with Bayview Loan Servicing, L.L.C. (“Bayview”), Bank of New York Mellon’s
authorized loan servicing agent. At the time, the unpaid principal balance due on
the note was $263,779.51. Under the adjustment agreement, appellants’ unpaid
principal balance was increased by $284,058.30, for a new total unpaid principal
balance due of $547,637.81. The adjustment agreement also reduced the annual
interest rate to 4.25 percent.
In October 2015, appellants defaulted on their loan. Appellants did
not make the required monthly payment on October 1, 2015, and have not made
any subsequent payments.
On September 26, 2016, Bank of New York Mellon initiated a
foreclosure action, filing a complaint “for money judgment, foreclosure, and other
equitable relief” against appellants.2 Bank of New York Mellon demanded
judgment against appellants on the promissory note “for the sum of $540,516.48
together with interest accruing on the sum of $375,619.23 at the rate of 4.25% per
annum from September 1, 2015[.]”
On November 11, 2016, appellants filed a motion for leave to file an
answer and an answer. In their answer, appellants did not challenge the validity
2Bank of New York Mellon also filed its complaint against the following defendants that are not involved in the instant appeal: Citizens Bank, State of Ohio Department of Taxation, The United States of America/Attorney General (Washington, DC), and The United States of America/District Attorney (Cleveland, OH). of the assignment of the note and mortgage to Bank of New York Mellon nor assert
that Bank of New York Mellon lacked standing to initiate foreclosure proceedings.
In March 2017, the trial court stayed discovery and motion practice
and referred the case to mediation. The trial court scheduled a mediation hearing
in June 2017. The parties were unable to resolve the foreclosure dispute through
mediation. The stay on discovery and motion practice was lifted, and the case was
returned to a magistrate for further proceedings.
On January 9, 2018, Bank of New York Mellon filed a motion for
summary judgment. Therein, Bank of New York Mellon argued that it was entitled
to judgment as a matter of law because appellants’ failure to make the required
monthly payments between March 2001 and February 2016 constituted a breach
of the note and mortgage, Bank of New York Mellon is entitled to enforce the note
and mortgage, and the unpaid balance of the note had matured. In support of its
summary judgment motion, Bank of New York Mellon submitted an affidavit of
attorney Ted Humbert, an affidavit of Bayview Loan Servicing Agent Keli Smith,
copies of the promissory note and mortgage, and copies of the assignments of the
note and mortgage. The promissory note was endorsed in blank.
Appellants filed a brief in opposition to Bank of New York Mellon’s
summary judgment motion on February 8, 2018. Therein, appellants argued, in
relevant part, that genuine issues of material fact existed regarding (1) Bank of New
York Mellon’s status as holder of the mortgage based on a break in the chain of
assignments of the note and mortgage, (2) the validity of the assignment of the note and mortgage to Bank of New York Mellon, and (3) whether the entity for
which Bank of New York Mellon is trustee, CWABS, Inc., Asset-Backed Notes,
Series 2006-SD3, legally exists.
Regarding the first purported issue of material fact, appellants
argued that the entity that assigned the mortgage to Bank of New York Mellon,
Bank of New York, as Trustee, did not exist: “[Bank of New York, as Trustee] is a
facially incomplete description, as no trust is named. No such entity can exist, as
a trustee only acts as such for a particular trust. The chain of assignments is thus
prima facie broken by the insertion of a non-existent and incognizable
assignor/assignee.” Appellants’ brief in opposition at 6. Regarding the second
purported issue of material fact, appellants alleged that the assignment of the note
and mortgage from Bank of New York, as Trustee, to Bank of New York Mellon was
“void ab initio because assignment is a nullity under the law, as the assignor [Bank
of New York, as Trustee] has no legal existence.” Appellants’ brief in opposition at
7.
Regarding the third purported genuine issue of material fact,
appellants emphasized that “CWABS, Inc. Asset-Backed Notes, Series 2006-SD3”
was not listed in the United States Securities and Exchange Commission’s
Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”). (Emphasis
added.) Appellants acknowledged that a “similarly-named entity — CWABS Asset-
Backed Certifıcates, Series 2006-SD3” was listed in EDGAR. (Emphasis added.)
Appellants asserted, without citing to any authority, that “[m]ortgage securitization trusts must register or list with the United States Securities and
Exchange Commission.”
In support of their brief in opposition, appellants attached an
affidavit of loan modification specialist Richard Haig and documents obtained
from EDGAR. The EDGAR documents revealed that there were no registrants
under the name “CWABS Inc. Asset-Backed Notes, Series 2006-SD3.”
Bank of New York Mellon filed a reply brief in support of its summary
judgment motion on February 15, 2018. A magistrate held a hearing on June 22,
2018.
Following the hearing, the magistrate granted Bank of New York
Mellon’s motion for summary judgment. On June 25, 2018, the magistrate issued
a decision with findings of fact and conclusions of law. The magistrate issued a
revised decision with findings of fact and conclusions of law on September 7, 2018.
Therein, the magistrate found that Bank of New York Mellon possesses the original
note and attached a true and accurate copy of the original note to its complaint.
The magistrate determined that “the last assignee is now known as Bank of New
York Mellon, and that the Plaintiff entitled to enforce the note and mortgage is
properly named as, ‘Bank of New York Mellon fka Bank of New York as Trustee for
Certificateholders CWABS, Inc. Asset-Backed Notes, Series 2006-SD3.’” The
magistrate acknowledged that appellants were not precluded from challenging
whether Bank of New York Mellon was the holder of the note and mortgage or
challenging the validity of the assignments of the note and mortgage to Bank of New York Mellon. However, the magistrate concluded that appellants “have not
presented or pointed to evidence in this case that raises a genuine issue for trial.”
Appellants filed objections to the magistrate’s revised decision on
September 20, 2018. Therein, appellants argued, in relevant part, that a genuine
issue of material fact exists regarding whether or not Bank of New York Mellon’s
trust (CWABS, Inc., Asset-Backed Notes, Series 2006-SD3) exists. Referencing the
search results obtained from EDGAR, appellants asserted that “[i]f [Bank of New
York Mellon’s] trust does not exist, neither does [Bank of New York Mellon].”
Appellants’ objections at p. 5.
Bank of New York Mellon filed a brief in opposition to appellants’
objections on September 27, 2018. Therein, Bank of New York Mellon argued, in
relevant part, that (1) appellants failed to identify any authority in support of their
assertion that Bank of New York Mellon or Bank of New York Mellon’s trust must
register with the SEC or be listed in EDGAR, and (2) whether Bank of New York
Mellon or the trust are registered with the SEC and listed in EDGAR is irrelevant
to the issue of Bank of New York Mellon’s standing to commence foreclosure
proceedings.
On May 8, 2019, the trial court issued its judgment entry overruling
appellants’ objections and adopting the magistrate’s revised decision granting
Bank of New York Mellon’s motion for summary judgment. The trial court’s
judgment entry provides, in relevant part, [Appellants present] no authority to suggest that all or even most mortgage securitization trusts must register with the SEC. It is unreasonable to infer, from the failure of [appellants] to find [Bank of New York Mellon] trust in its search of the SEC’s EDGAR system, that the trust, the [Bank of New York Mellon or Bank of New York Mellon’s] capacity as trustee, does not exist. The evidence, specifically the affidavit of Keli Smith, which supports [Bank of New York Mellon’s] existence, is not contradicted by the affidavit of Richard Haig.
Appellants filed the instant appeal on May 30, 2019, challenging the
trial court’s May 8, 2019 judgment.
On June 21, 2019, appellants filed for bankruptcy pursuant to
Chapter 7 in the United States Bankruptcy Court, Northern District of Ohio.3
Appellants filed a “notice of bankruptcy filing and suggestion of stay” in this court
on June 24, 2019. On June 25, 2019, this court stayed the appeal during the
pendency of appellants’ bankruptcy action. On September 24, 2019, this court
extended the stay to January 7, 2020, due to pending bankruptcy proceedings.
On November 6, 2019, the bankruptcy court terminated the
automatic stay on the property at issue. (Case No. 19-13857) This court returned
the appeal to the active docket on November 13, 2019.
Appellants filed for bankruptcy on February 28, 2020, pursuant to
Chapter 13 in the United States Bankruptcy Court, Northern District of Ohio.4 On
March 12, 2020, this court stayed the appeal during the pendency of appellants’
second bankruptcy action. Additionally, on April 13, 2020, pursuant to the state
3 Case No. 19-13857. 4 Case No. 20-11118. of emergency declared by the Governor and the COVID-19 pandemic, this court
stayed all foreclosure cases until May 31, 2020.
Appellants’ second bankruptcy action (Case No. 20-11118) was
dismissed on April 17, 2020. This court returned the appeal to the active docket
on June 4, 2020.
In this appeal, appellants assign one error for review:
I. The trial court erred in granting summary judgment when uncontroverted affiant testimony and accompanying public records evidence indicated that plaintiff does not exist and therefore is neither a real party interest nor has standing to bring the action.
II. Law and Analysis
A. Summary Judgment
In their sole assignment of error, appellants argue that the trial court
erred in adopting the magistrate’s revised decision and granting summary
judgment in favor of Bank of New York Mellon in Bank of New York Mellon’s
foreclosure action.
1. Standard of Review
Summary judgment, governed by Civ.R. 56, provides for the
expedited adjudication of matters where there is no material fact in dispute to be
determined at trial. In order to obtain summary judgment, the moving party must
show that “(1) there is no genuine issue of material fact; (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 when viewing evidence in favor
of the nonmoving party, and that conclusion is adverse to the nonmoving party.” Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), citing
State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217,
219, 631 N.E.2d 150 (1994).
The moving party has the initial responsibility of establishing that it
is entitled to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,
662 N.E.2d 264 (1996). “[I]f the moving party meets this burden, summary
judgment is appropriate only if the nonmoving party fails to establish the existence
of a genuine issue of material fact.” Deutsche Bank Natl. Trust Co. v. Najar, 8th
Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 16, citing Dresher at 293.
Once the moving party demonstrates no material issue of fact exists
for trial and the party is entitled to judgment, the burden shifts to the nonmoving
party to put forth evidence demonstrating the existence of a material issue of fact
that would preclude judgment as a matter of law. Dresher at id. In order to meet
his or her burden, the nonmoving party may not merely rely upon allegations or
denials in his or her pleadings, and must set forth specific facts, by affidavit or as
otherwise provided in Civ.R. 56(E), demonstrating the existence of a genuine issue
of material fact for trial. See Houston v. Morales, 8th Dist. Cuyahoga No. 106086,
2018-Ohio-1505, ¶ 7, citing Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385, 667
N.E.2d 1197 (1996). Summary judgment is appropriate if the nonmoving party
fails to meet this burden. Dresher at id. 2. Standing
As an initial matter, we note that appellants do not dispute that they
breached the note and mortgage by failing to make the requisite monthly payments
and that they defaulted on the loan. The record reflects that as of December 2017,
appellants’ loan had been, and remained in default. At that time, the unpaid
principal balance due on appellants’ loan was $540,516.48 together with interest
accruing on the sum of $375,619.23 at the annual rate of 4.25 percent from
September 1, 2015.
Rather, appellants dispute whether Bank of New York Mellon has
standing to initiate foreclosure proceedings. Appellants argue that the trial court
erred by granting summary judgment in favor of Bank of New York Mellon because
genuine issues of material fact exist regarding whether Bank of New York Mellon
has standing to bring the foreclosure action, whether Bank of New York Mellon is
a real party in interest, and whether Bank of New York Mellon legally exists.
Appellants appear to allege that Bank of New York Mellon lacks standing because
one of the entities in the chain of assignments is a fictional entity that does not
exist.
To obtain summary judgment in a foreclosure action, the moving
party must present evidentiary quality materials establishing (1) the plaintiff is the
holder of the note and mortgage or is a party entitled to enforce the instrument;
(2) if the plaintiff 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. HSBC Bank USA, N.A. v.
Surrarrer, 8th Dist. Cuyahoga No. 100039, 2013-Ohio-5594, ¶ 16, citing U.S.
Bank, N.A. v. Adams, 6th Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 10.
“A note secured by a mortgage is a negotiable instrument that is
governed by R.C. Chapter 1303.” JP Morgan Chase Bank v. Stevens, 8th Dist.
Cuyahoga No. 104835, 2017-Ohio-7165, ¶ 37, citing Wells Fargo Bank, N.A. v.
Carver, 2016-Ohio-589, 60 N.E.3d 473, ¶ 14 (8th Dist.). Under R.C. 1303.31(A),
three “persons” are entitled to enforce an instrument: (1) the holder of the
instrument; (2) a nonholder in possession of the instrument who has the rights of
a holder; and (3) a person not in possession of the instrument who is entitled to
enforce the instrument under R.C. 1303.38 or 1303.58(D). R.C. 1301.201(B)(21)(a)
defines a holder of a negotiable instrument 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.”
As noted above, the promissory note Bank of New York Mellon
submitted in support of its motion for summary judgment was endorsed in blank.
Pursuant to R.C. 1303.25(B), when an instrument is endorsed in blank, it is payable
to the bearer. Stevens at ¶ 37.
In order to properly invoke the jurisdiction of the trial court, a
plaintiff in a foreclosure action must have standing at the time plaintiff files the
complaint. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13,
2012-Ohio-5017, 979 N.E.2d 1214, ¶ 41-42. The plaintiff-lender must establish it was the holder of the note or a party entitled to enforce the note at the time the
complaint was filed. Portage Cty. Commrs. v. O’Neil, 11th Dist. Portage No. 2013-
P-0066, 2015-Ohio-808, ¶ 13, citing Schwartzwald at ¶ 3. If the plaintiff’s interest
did not exist at the time of the filing of the foreclosure complaint, the plaintiff does
not have standing to proceed with the foreclosure action. Schwartzwald at ¶ 25-
27.
In granting Bank of New York Mellon’s motion for summary
judgment, the trial court concluded that appellants failed to present any evidence
that created a genuine issue of material fact regarding the validity of the
assignments of the note and mortgage to Bank of New York Mellon and whether
Bank of New York Mellon was the holder of the note and mortgage. Furthermore,
the trial court emphasized that appellants “present[ed] no authority to suggest that
all or even most mortgage securitization trusts must register with the SEC.”
After reviewing the record, we find no basis upon which to conclude
that the trial court erred in granting summary judgment in favor of Bank of New
York Mellon.
In support of its motion for summary judgment, Bank of New York
Mellon submitted (1) a copy of the original promissory note, (2) a copy of the
recorded mortgage, (3) a copy of the recorded assignment of the mortgage to Bank
of New York Mellon in 2008, (4) a copy of appellants’ 2014 loan adjustment
agreement with Bayview, (5) appellants’ mortgage account records, including “loan
history statements” submitted by Bank of America with a notice date in August 2012,5 and “customer account activity” statements between October 2012 and
January 2017, and (6) a “notice of default and intent to accelerate” letter sent from
Bayview to appellants in May 2016. Bank of New York Mellon also submitted an
affidavit of Keli Smith, loan servicing agent with Bayview.
Smith averred that from at least September 2016, when Bank of New
York Mellon filed its complaint, Bank of New York Mellon “has been in the
possession of the original promissory Note” and that the promissory note Bank of
New York Mellon attached to its complaint and motion for summary judgment was
“a true and accurate copy of the original Note[.]” Smith confirmed that Bank of
New York Mellon attached a true and accurate copy of the original recorded
mortgage to its motion for summary judgment. Smith averred that the
assignments of the mortgage that Bank of New York Mellon attached to its motion
for summary judgment were true and accurate copies of the assignments. Finally,
Bank of New York Mellon submitted an affidavit of its attorney Ted Humbert.
Humbert averred, in relevant part, that he spoke with Smith and that Smith
“confirmed the factual accuracy of [Bank of New York Mellon’s complaint] as [the
complaint relates] to the records of [appellants’] loan[.]”
In light of this evidence, Bank of New York Mellon met its initial
burden of demonstrating that it was entitled to summary judgment — Bank of New
York Mellon possessed the original note and is the record holder of the mortgage,
5Bank of America was servicing appellants’ loan before the loan was transferred to Bayview. and as such, is entitled to enforce the note through its foreclosure action.
Appellants acknowledge that Smith’s affidavit “authenticate[d] the documents
generally requisite for foreclosure: promissory note; mortgage, mortgage
assignments, and loan modification; mortgage loan account records, and;
acceleration letter.” Appellants’ brief at 4. The burden then shifted to appellants
to demonstrate the existence of genuine issues of material fact for trial.
As noted above, in opposing Bank of New York Mellon’s motion for
summary judgment, appellants argued that genuine issues of material fact existed
regarding (1) Bank of New York Mellon’s status as holder of the mortgage based on
a break in the chain of assignments of the note and mortgage, (2) the validity of the
assignment of the note and mortgage to Bank of New York Mellon, and (3) whether
the entity for which Bank of New York Mellon is trustee, CWABS, Inc. Asset-backed
notes, Series 2006-SD3, legally exists.
Regarding the existence of the trust, appellants emphasized that
“CWABS, Inc. Asset-Backed Notes, Series 2006-SD3” was not listed in EDGAR.
Appellants argued, without citation to any legal authority, that “[m]ortgage
securitization trusts must register or list with the [SEC].”
In support of their brief in opposition, appellants attached an
affidavit of loan modification specialist Richard Haig. In his affidavit, Haig averred
that he conducted research in EDGAR in November 2017 to gather information
regarding appellants’ loan. Haig did not find the entity “CWABS Inc. Asset-Backed
Notes Series 2006-SD3” listed in EDGAR. Haig conducted other searches in EDGAR, including a search for entities under the name “CWABS,” and the results
of these searches were attached to appellants’ brief in opposition. Appellants also
submitted the documents pertaining to Haig’s EDGAR searches.
After reviewing the record, we find that appellants failed to meet
their burden of demonstrating the existence of a genuine issue of material fact that
remained for trial.
As was the case in opposing Bank of New York Mellon’s motion for
summary judgment, appellants fail to identify any legal authority that states
mortgage securitization trusts must register with the SEC or be listed in EDGAR —
much less that an assignment of a note and mortgage is invalidated if an entity that
failed to register with the SEC or is not listed in EDGAR is in the chain of
assignments. See App.R. 16(A)(7). Appellants have failed to demonstrate how the
registration issue is in any way relevant to whether appellants defaulted on their
mortgage (an issue not in dispute) and whether the note and mortgage were
assigned to Bank of New York Mellon, such that Bank of New York Mellon is
entitled to commence foreclosure proceedings.
Appellants’ brief in opposition to Bank of New York Mellon’s motion
for summary judgment provides, in relevant part, “[appellants do] not raise the
specter of fraud between [Bank of New York Mellon] and Bank of New York, as
Trustee. [Appellants are] not arguing that a court of equity should somehow
protect [them] because the banks dealt falsely with each other [in regards to the
note, mortgage, or transfer thereof].” Appellants have failed to demonstrate, and we are unable to discern, how the failure to register with the SEC or be listed in
EDGAR, without more, has any relevance to Bank of New York Mellon’s standing
to commence foreclosure proceedings or affects the validity of the assignments of
the note and mortgage to Bank of New York Mellon.
It is the appellants’ burden to demonstrate error on appeal with
citation to supporting legal authority. Although appellants claim Bank of New York
Mellon lacks standing because an entity in the chain of assignments, the trust, was
not registered with the SEC or listed in EDGAR, appellants failed to cite any legal
authority in support of their claim as required by App.R. 16(A)(7). See Taylor-
Stephens v. Rite Aid of Ohio, 8th Dist. Cuyahoga No. 106324, 2018-Ohio-4714,
¶ 120-122.
Appellants’ standing and real party in interest arguments are based
entirely on the presumption that in order to “legally exist” for purposes of having
standing and being a real party in interest in a foreclosure action, the party must
be registered with the SEC or listed in EDGAR. Appellants have failed to identify
any legal authority that supports this presumption or stands for this proposition.
Appellants’ standing and real party in interest arguments are also
based entirely on the presumption that “CWABS, Inc. Asset-backed notes, Series
2006-SD3” was not listed in EDGAR because the entity did not, in fact, legally
exist, rather than, as Bank of New York Mellon suggests, the entity existed but had
not, or was not required to register with the SEC. Appellants’ presumption is
entirely speculative. “‘Mere speculation and unsupported conclusory assertions are not
sufficient’ to meet the nonmovant’s reciprocal burden under Civ.R. 56(E) to
withstand summary judgment.” Wilmington Trust N.A. v. Boydston, 8th Dist.
Cuyahoga No. 105009, 2017-Ohio-5816, ¶ 31, quoting Loveday v. Essential
Heating, Cooling & Refrigeration, Inc., 4th Dist. Gallia No. 08CA4, 2008-Ohio-
4756, ¶ 9. Appellants’ belief that “CWABS, Inc. Asset-backed notes, Series 2006-
SD3” was not listed in EDGAR because the entity did not legally exist and Haig’s
assertion that he did not find the entity “CWABS Inc. Asset-Backed Notes Series
2006-SD3” listed in EDGAR, without more, are insufficient to create a genuine
issue of material fact to defeat summary judgment.
Appellants’ standing and real party in interest arguments also fail on
the merits. “[T]he law in this district provides that a mortgagor lacks standing to
challenge a mortgage assignment if the mortgagor is neither a party to, nor a third-
party beneficiary of, the assignment of the mortgage.” Stevens, 8th Dist. Cuyahoga
No. 104835, 2017-Ohio-7165, at ¶ 40, citing Everbank v. Katz, 8th Dist. Cuyahoga
No. 100603, 2014-Ohio-4080, ¶ 8, Bank of N.Y. Mellon v. Froimson, 8th Dist.
Cuyahoga No. 99443, 2013-Ohio-5574, ¶ 17, and Bank of N.Y. Mellon Trust Co.,
N.A. v. Unger, 8th Dist. Cuyahoga No. 97315, 2012-Ohio-1950, ¶ 35.
In the instant matter, Bank of New York Mellon attached to its
summary judgment motion a copy of the assignments of the mortgage from (1)
MERS as nominee for America’s Wholesale Lender to Bank of New York, as
Trustee, and (2) Bank of New York, as Trustee, to Bank of New York Mellon. Appellants are neither parties to, nor third-party beneficiaries of these
assignments. Appellants do not claim how they were injured as a result of these
assignments. Accordingly, appellants lack standing to challenge the assignments
of the mortgage to Bank of New York Mellon or the circumstances under which the
assignments were created. See Stevens at ¶ 41.
Additionally, appellants’ contention that the mortgage was
improperly assigned to Bank of New York Mellon is irrelevant because under Ohio
Law, “the mortgage ‘follows the note’ it secures.” Stevens at ¶ 42, quoting Najar,
8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, at ¶ 65, citing U.S. Bank N.A. v.
Marcino, 181 Ohio App.3d 328, 2009-Ohio-1178, 908 N.E.2d 1032, ¶ 52 (7th Dist.).
An assignment of a mortgage does not alter the obligations of appellants, as
borrowers, under the note or mortgage. See Unger at ¶ 35.
As noted above, the promissory note was endorsed in blank. Because
the note was endorsed in blank, “defenses relating to chain of title are null and
inapplicable, because it is immaterial how the person became the holder of the
note.” Bank of Am., N.A. v. Farris, 2015-Ohio-4980, 50 N.E.3d 1043, ¶ 27 (8th
Dist.), citing Froimson, 8th Dist. Cuyahoga No. 99443, 2013-Ohio-5574. Accord
U.S. Bank Natl. Assn. v. Robinson, 8th Dist. Cuyahoga No. 108526, 2020-Ohio-
32, ¶ 19.
Finally, we note that the same challenge raised by appellants in this
appeal disputing the existence of a securitized trust within the chain of
assignments was rejected in Bank of New York Mellon v. Williams, 10th Dist. Franklin No. 13AP-499, 2014-Ohio-3737. In that case, the court concluded that
“the attorney’s failure to find a listing for the trust is not evidence that it does not
exist.” Id. at ¶ 11. In any event, in Bank of N.Y. Mellon v. Lewis, Franklin C.P. No.
12CV000612, 2012 Ohio Misc. LEXIS 6101 (Apr. 12, 2012), the court’s opinion
granting foreclosure referenced the existence of “CWABS, Inc. Asset-Backed
Notes, Series SD-3 to The Bank of New York Mellon” as a former name for “CWABS
Inc., Asset-Backed Certificates, Series 2006-SD3[.]”
For all of the foregoing reasons, and viewing the evidence in favor of
appellants as the nonmoving party, we find that there are no genuine issues of
material fact that existed for trial. The trial court properly granted summary
judgment in favor of Bank of New York Mellon in the foreclosure action.
Appellants’ sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and MICHELLE J. SHEEHAN, J., CONCUR