[Cite as Flagstar Bank, F.S.B. v. Richison, 2012-Ohio-3198.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
FLAGSTAR BANK, FSB,
PLAINTIFF-APPELLEE, CASE NO. 14-12-01
v.
ERIC RICHISON, ET AL., OPINION
DEFENDANTS-APPELLANTS.
Appeal from Union County Common Pleas Court Trial Court No. 2011-CV-0043
Judgment Affirmed
Date of Decision: July 16, 2012
APPEARANCES:
Brian K. Duncan for Appellants
Scott A. King and Terry W. Posey, Jr. for Appellee Case No. 14-12-01
ROGERS, J.
{¶1} Defendants-Appellants, Eric and April Richison (“the Richisons”),
appeal the judgment of the Court of Common Pleas of Union County granting
summary judgment in favor of Plaintiff-Appellee, Flagstar Bank, F.S.B.
(“Flagstar”), in Flagstar’s foreclosure action against the Richisons. On appeal, the
Richisons contend that the trial court erred in granting summary judgment in favor
of Flagstar because there were genuine issues of material fact and Flagstar was not
entitled to judgment as a matter of law. Based on the following, we affirm the
judgment of the trial court.
{¶2} On September 19, 2007, the Richisons executed a promissory note
(“the Note”) with Nation One Mortgage Services, Ltd. (“Nation One”) for a loan
in the amount of $214,200.00. The last page of the Note bears an endorsement
from Nation One to Flagstar reading, “[p]ay to the order of Flagstar Bank, FSB
without recourse.” (Docket No. 2, Ex. A, p. 3). The Note was secured by a
mortgage (“Mortgage”) encumbering property located at 383 Triple Crown Way,
Marysville, Ohio (“Property”).
{¶3} On February 4, 2011, Flagstar filed a complaint for foreclosure
alleging that it was in possession of and the holder of the Note; that it was the
holder of the Mortgage; that the Richisons were in default of payment on the Note
and Mortgage securing the same; and, that a balance of $209,583.06, plus interest
-2- Case No. 14-12-01
remained outstanding on the Note. Attached to the complaint was a copy of the
Note, Mortgage, and a mortgage assignment. Flagstar requested judgment against
the Richisons for the outstanding balance on the Note, plus interest and other
costs, and that the trial court order foreclosure and sale of the Property.
{¶4} On April 1, 2011, the Richisons filed their answer.
{¶5} On October 5, 2011, Flagstar filed a motion for summary judgment
arguing that there were no genuine issues of material fact and that it was entitled
to judgment as a matter of law. In support of its motion for summary judgment,
Flagstar attached a copy of the Note, Mortgage, and mortgage assignment. In
addition to the foregoing documents, Flagstar filed an affidavit of its employee
Barbara Dore (“Dore”). In her affidavit, Dore attested that she is a foreclosure
analyst with Flagstar; that Flagstar is and was in possession of the Note prior to
filing the complaint; that the copies of the Note and Mortgage attached to the
complaint are true and accurate copies of the original instruments; that the
Richisons have not made payments on the Note since September 1, 2009 and,
consequently, are in default of payment on the Note and Mortgage securing the
same; and, that a balance of $209,583.06, plus interest remains outstanding on the
Note.
{¶6} On November 16, 2011, the Richisons filed a memorandum in
opposition to Flagstar’s motion for summary judgment. The Richisons argued that
-3- Case No. 14-12-01
there were genuine issues of material fact as to whether Flagstar is a holder in due
course of the Note and whether the assumption of risk doctrine applies in a
foreclosure action.
{¶7} On December 1, 2011, Flagstar filed a reply to the Richisons’
memorandum in opposition. Flagstar argued that status as holder in due course is
irrelevant because it is entitled to enforce the Note due to its status as a holder.
Flagstar also argued that the assumption of risk doctrine has no application in a
{¶8} On December 9, 2011, the trial court granted summary judgment in
favor of Flagstar.
{¶9} It is from this judgment the Richisons appeal, presenting the following
assignment of error for our review.
Assignment of Error No. I
THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE GENUINE ISSUES OF FACT AND PLAINTIFF WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.
{¶10} In their sole assignment of error, the Richisons contend that the trial
court erred in granting summary judgment in favor of Flagstar. The Richisons’
contention is two-fold. First, the Richisons contend that there is a genuine issue of
material fact as to whether Flagstar is a holder in due course. Second, the
-4- Case No. 14-12-01
Richisons contend that there is a genuine issue of material fact as to whether the
assumption of risk doctrine applies in a foreclosure action. We disagree with both
contentions.
{¶11} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.
1999). Accordingly, a reviewing court will not reverse an otherwise correct
judgment merely because the lower court utilized different or erroneous reasons as
the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton
Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),
citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d
217, 222 (1994). Summary judgment is appropriate when, looking at the evidence
as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving
party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this
analysis the court must determine “that 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, [the nonmoving] party being entitled to have the
evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”
Id. If any doubts exist, the issue must be resolved in favor of the nonmoving
party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).
-5- Case No. 14-12-01
{¶12} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact on a material element of the nonmoving party’s claim. Dresher v.
Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the moving party is not required
to produce any affirmative evidence, but must identify those portions of the record
which affirmatively support his or her argument. Id. The nonmoving party must
then rebut with specific facts showing the existence of a genuine triable issue; he
or she may not rest on the mere allegations or denials of his or her pleadings. Id.
at 293; Civ.R. 56(E).
Holder In Due Course
{¶13} On appeal, the Richisons contend that there is a genuine issue of
material fact as to whether Flagstar is a holder in due course of the Note. We
disagree, finding that Flagstar’s status as a holder in due course of the Note is
irrelevant to the resolution of this case.
{¶14} Generally, a plaintiff producing an instrument is entitled to payment
if the plaintiff proves that he or she is entitled to enforce the instrument pursuant
to R.C. 1303.31.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Flagstar Bank, F.S.B. v. Richison, 2012-Ohio-3198.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
FLAGSTAR BANK, FSB,
PLAINTIFF-APPELLEE, CASE NO. 14-12-01
v.
ERIC RICHISON, ET AL., OPINION
DEFENDANTS-APPELLANTS.
Appeal from Union County Common Pleas Court Trial Court No. 2011-CV-0043
Judgment Affirmed
Date of Decision: July 16, 2012
APPEARANCES:
Brian K. Duncan for Appellants
Scott A. King and Terry W. Posey, Jr. for Appellee Case No. 14-12-01
ROGERS, J.
{¶1} Defendants-Appellants, Eric and April Richison (“the Richisons”),
appeal the judgment of the Court of Common Pleas of Union County granting
summary judgment in favor of Plaintiff-Appellee, Flagstar Bank, F.S.B.
(“Flagstar”), in Flagstar’s foreclosure action against the Richisons. On appeal, the
Richisons contend that the trial court erred in granting summary judgment in favor
of Flagstar because there were genuine issues of material fact and Flagstar was not
entitled to judgment as a matter of law. Based on the following, we affirm the
judgment of the trial court.
{¶2} On September 19, 2007, the Richisons executed a promissory note
(“the Note”) with Nation One Mortgage Services, Ltd. (“Nation One”) for a loan
in the amount of $214,200.00. The last page of the Note bears an endorsement
from Nation One to Flagstar reading, “[p]ay to the order of Flagstar Bank, FSB
without recourse.” (Docket No. 2, Ex. A, p. 3). The Note was secured by a
mortgage (“Mortgage”) encumbering property located at 383 Triple Crown Way,
Marysville, Ohio (“Property”).
{¶3} On February 4, 2011, Flagstar filed a complaint for foreclosure
alleging that it was in possession of and the holder of the Note; that it was the
holder of the Mortgage; that the Richisons were in default of payment on the Note
and Mortgage securing the same; and, that a balance of $209,583.06, plus interest
-2- Case No. 14-12-01
remained outstanding on the Note. Attached to the complaint was a copy of the
Note, Mortgage, and a mortgage assignment. Flagstar requested judgment against
the Richisons for the outstanding balance on the Note, plus interest and other
costs, and that the trial court order foreclosure and sale of the Property.
{¶4} On April 1, 2011, the Richisons filed their answer.
{¶5} On October 5, 2011, Flagstar filed a motion for summary judgment
arguing that there were no genuine issues of material fact and that it was entitled
to judgment as a matter of law. In support of its motion for summary judgment,
Flagstar attached a copy of the Note, Mortgage, and mortgage assignment. In
addition to the foregoing documents, Flagstar filed an affidavit of its employee
Barbara Dore (“Dore”). In her affidavit, Dore attested that she is a foreclosure
analyst with Flagstar; that Flagstar is and was in possession of the Note prior to
filing the complaint; that the copies of the Note and Mortgage attached to the
complaint are true and accurate copies of the original instruments; that the
Richisons have not made payments on the Note since September 1, 2009 and,
consequently, are in default of payment on the Note and Mortgage securing the
same; and, that a balance of $209,583.06, plus interest remains outstanding on the
Note.
{¶6} On November 16, 2011, the Richisons filed a memorandum in
opposition to Flagstar’s motion for summary judgment. The Richisons argued that
-3- Case No. 14-12-01
there were genuine issues of material fact as to whether Flagstar is a holder in due
course of the Note and whether the assumption of risk doctrine applies in a
foreclosure action.
{¶7} On December 1, 2011, Flagstar filed a reply to the Richisons’
memorandum in opposition. Flagstar argued that status as holder in due course is
irrelevant because it is entitled to enforce the Note due to its status as a holder.
Flagstar also argued that the assumption of risk doctrine has no application in a
{¶8} On December 9, 2011, the trial court granted summary judgment in
favor of Flagstar.
{¶9} It is from this judgment the Richisons appeal, presenting the following
assignment of error for our review.
Assignment of Error No. I
THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE GENUINE ISSUES OF FACT AND PLAINTIFF WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.
{¶10} In their sole assignment of error, the Richisons contend that the trial
court erred in granting summary judgment in favor of Flagstar. The Richisons’
contention is two-fold. First, the Richisons contend that there is a genuine issue of
material fact as to whether Flagstar is a holder in due course. Second, the
-4- Case No. 14-12-01
Richisons contend that there is a genuine issue of material fact as to whether the
assumption of risk doctrine applies in a foreclosure action. We disagree with both
contentions.
{¶11} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.
1999). Accordingly, a reviewing court will not reverse an otherwise correct
judgment merely because the lower court utilized different or erroneous reasons as
the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton
Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),
citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d
217, 222 (1994). Summary judgment is appropriate when, looking at the evidence
as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving
party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this
analysis the court must determine “that 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, [the nonmoving] party being entitled to have the
evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”
Id. If any doubts exist, the issue must be resolved in favor of the nonmoving
party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).
-5- Case No. 14-12-01
{¶12} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact on a material element of the nonmoving party’s claim. Dresher v.
Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the moving party is not required
to produce any affirmative evidence, but must identify those portions of the record
which affirmatively support his or her argument. Id. The nonmoving party must
then rebut with specific facts showing the existence of a genuine triable issue; he
or she may not rest on the mere allegations or denials of his or her pleadings. Id.
at 293; Civ.R. 56(E).
Holder In Due Course
{¶13} On appeal, the Richisons contend that there is a genuine issue of
material fact as to whether Flagstar is a holder in due course of the Note. We
disagree, finding that Flagstar’s status as a holder in due course of the Note is
irrelevant to the resolution of this case.
{¶14} Generally, a plaintiff producing an instrument is entitled to payment
if the plaintiff proves that he or she is entitled to enforce the instrument pursuant
to R.C. 1303.31. However, if the defendant proves a defense or claim enumerated
in R.C. 1303.35, then the plaintiff’s right to payment becomes subject to the
asserted defense or claim, except to the extent that the plaintiff proves he or she
-6- Case No. 14-12-01
has rights of a holder in due course that are not subject to the asserted defense or
claim.
{¶15} Here, there is no dispute as to whether Flagstar is entitled to enforce
the Note under R.C. 1303.31. One is entitled to enforce an instrument, such as the
Note, if they are a holder of that instrument. R.C. 1303.31(A)(1). A “‘[h]older’
with respect to a negotiable instrument means either of the following: (a) If the
instrument is payable to the 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.” R.C. 1301.01(T)(1)(a), (b). 1
Review of the record reveals that Flagstar is in possession of the Note and that the
Note is payable to Flagstar. Accordingly, Flagstar is a holder of the Note and
therefore is entitled to enforce the same.
{¶16} Having determined that Flagstar is a holder, we must determine
whether the Richisons have proven a defense or claim enumerated in R.C.
1303.35. On appeal, the Richisons do allege several defenses, but present no
evidence or argument proving that any of the defenses exist. Because the
Richisons failed to prove any of the defenses, Flagstar is not required to prove that
it is a holder in due course in order to recover. See Arcanum Natl. Bank v. 1 R.C. 1301.01 was repealed by 2011 Am.H.B. No. 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. As R.C. 1301.201 applies only to transactions entered on or after June 29, 2011, we apply R.C. 1301.01 to this appeal. We note that the R.C. 1301.201(B)(21)(a) definition of “holder” is substantially similar to the R.C. 1301.01(T)(1)(a) and (b) definition of “holder.”
-7- Case No. 14-12-01
Hessler, 69 Ohio St.2d 549, 551 (1982) (whether one is a holder in due course is
an issue which does not arise unless it is shown a defense exists). Accordingly,
the Richisons’ contention concerning Flagstar’s status as a holder in due course of
the Note is irrelevant to the resolution of this case.
Assumption of Risk
{¶17} Next, the Richisons contend that there is a genuine issue of material
fact as to whether the assumption of risk doctrine applies in a foreclosure action.
We disagree.
{¶18} Determining whether the assumption of risk doctrine applies in a
foreclosure action is an issue of law. The Richisons fail to cite any authority
applying the assumption of risk doctrine in a foreclosure action, and a review of
Ohio case law yields no support for this assertion. Because the Richisons fail to
support their argument with authority as required by App.R. 16(A)(7), we decline
to address it. App.R. 12(A)(2). We summarily note, however, that the assumption
of the risk doctrine is primarily, if not exclusively, a defense against a claim of
negligence. Therefore, we find that without authority in support of their argument,
the assumption of the risk doctrine is not a defense in a foreclosure action.
{¶19} Accordingly, we overrule the Richisons’ sole assignment of error.
-8- Case No. 14-12-01
{¶20} Having found no error prejudicial to the Richisons herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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