[Cite as Nationstar Mtge., L.L.C. v. Anderson, 2023-Ohio-3186.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
NATIONSTAR MORTGAGE LLC, DBA : MR. COOPER : : C.A. No. 29716 Appellee : : Trial Court Case No. 2020 CV 01004 v. : : (Civil Appeal from Common Pleas ANDREW S. ANDERSON, et al. : Court) : Appellant :
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OPINION
Rendered on September 8, 2023
JOHN A. FISCHER, Attorney for Appellant
JAMES W. SANDY, Attorney for Appellee
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LEWIS, J.
{¶ 1} Defendant-Appellant Andrew S. Anderson (“Anderson”) appeals from a
judgment of foreclosure entered by the Montgomery County Common Pleas Court. For
the reasons that follow, we will affirm the judgment of the trial court.
I. Facts and Course of Proceedings -2-
{¶ 2} On November 24, 1999, Anderson and Loraine K. Anderson (“Lorraine”),
husband and wife, 1 signed an open-end, 20-year mortgage agreement with Security
National Mortgage Banc, LLC, relating to property located at 2143 Ottello Avenue in
Dayton, Ohio. Pursuant to the mortgage and accompanying note, the Andersons were
obligated to pay the principal sum of $44,500 in monthly installments with any remaining
debt becoming due in full on December 1, 2019.
{¶ 3} On February 25, 2020, Plaintiff-Appellee Nationstar Mortgage LLC, dba Mr.
Cooper (“Nationstar”), commenced an action for foreclosure against the Andersons in the
Common Pleas Court of Montgomery County. According to the complaint, Nationstar
was the current mortgagee of the November 24, 1999 mortgage pursuant to a series of
assignments, and the Andersons had defaulted in payment on the mortgage. Attached
to the complaint were copies of the original note and mortgage, the assignments of the
mortgage, and a preliminary judicial report. Nationstar requested judgment in the sum
of $7,390.59, plus interest at the rate of 7.875% per annum from February 1, 2018.
Nationstar also requested that the subject property at Ottello Avenue be appraised,
advertised, and sold according to law. The Andersons filed an answer denying the
allegations in the complaint.
{¶ 4} In September 2020, the trial court issued an order staying the proceedings
because of the foreclosure moratorium on federally-backed mortgage loans. The stay
was lifted a year later. On October 25, 2021, Nationstar filed an amended complaint,
adding unknown spouses of the Andersons, who had divorced. The Andersons filed
1 We refer to Anderson’s former wife by her first name to avoid confusion, due to their shared last name. -3-
separate answers to the amended complaint. In her answer, Loraine explained that she
and Anderson had divorced in 2013, and the divorce decree made Anderson solely
responsible for the mortgage on the Ottello property.
{¶ 5} On December 27, 2021, Nationstar filed a motion for summary judgment on
its amended complaint. Anderson filed a memorandum in opposition to the motion, but
Loraine did not file any opposition to the motion. On January 9, 2023, the trial court
granted Nationstar’s motion for summary judgment and issued a final judgment entry and
decree of foreclosure. The court awarded $7,390.59, plus interest thereon at the rate of
7.875% per annum from February 1, 2018. The trial court stated that unless this sum
and the costs of the action were fully paid within three days of the judgment entry, the
equity of redemption and dower of all the defendants in and to the premises shall be
foreclosed and said premises sold.
{¶ 6} Anderson filed a timely notice of appeal from the judgment of foreclosure.
II. The Trial Court Did Not Err in Granting Summary Judgment to Nationstar
{¶ 7} Anderson’s sole assignment of error states:
THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT OF FORECLOSURE.
{¶ 8} Anderson contends that the trial court erred by granting summary judgment
to Nationstar for the following reasons: (1) Nationstar lacked standing to bring the suit in
foreclosure, because it failed to show an unbroken chain of title from the original
mortgagee to the present; (2) Nationstar failed to prove the amount due on the loan, -4-
because it did not show all the payments made since the original date of the loan; and (3)
Nationstar failed to properly support its motion for summary judgment with specific
citations to the documents attached to its motion for summary judgment.
{¶ 9} Nationstar disagrees with Anderson’s contentions. According to Nationstar,
not only was it an assignee of the mortgage at the time the foreclosure action was filed,
but it also was a holder of the note on the mortgage. Appellee’s Brief, p. 8. Nationstar
states that it showed a complete, unbroken chain of assignments from 1999 to the
present. Further, Nationstar argues that Anderson lacks standing to challenge the
validity of the assignments of the mortgage. Id. Regarding the amount due on the loan,
Nationstar contends that a plaintiff is not required to provide a complete payment history
to receive summary judgment in a foreclosure action. Id. Rather, an affidavit stating a
loan is in default is sufficient, especially “where a borrower does not present controverting
evidence and does not dispute their failure to pay[.]” Id. at 10. Finally, Nationstar states
that it properly supported its motion for summary judgment, and the trial court did not
have to “rummage through” the record to find support for the motion. Id. at 11.
{¶ 10} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party. On a motion for summary judgment, the moving party carries an initial
burden of identifying specific facts in the record that demonstrate its entitlement to
summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 -5-
(1996). If the moving party fails to meet this burden, summary judgment is not
appropriate; if the moving party meets this burden, the nonmoving party has the reciprocal
burden to point to evidence of specific facts in the record demonstrating the existence of
a genuine issue of material fact for trial. Id. at 293. Summary judgment is appropriate
if the nonmoving party fails to meet this burden. Id. “We review decisions granting
summary judgment de novo, which means that we apply the same standards as the trial
court.” (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-
Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).
{¶ 11} When a mortgagor defaults, a mortgagee “may elect among separate and
independent remedies to collect the debt secured by a mortgage.” (Citations omitted.)
Deutsche Bank Natl. Trust Co. v. Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d
1243, ¶ 21. These remedies include: (1) suits seeking personal judgments against
mortgagors to recover amounts due on promissory notes, without resorting to the
mortgaged property; (2) actions to enforce mortgages, which are for the mortgagee's
excusive benefit and for those claiming under the mortgagee; and (3) “based on the
property interest created by the mortgagor's default on the mortgage, the mortgagee may
bring a foreclosure action to cut off the mortgagor's right of redemption, determine the
existence and extent of the mortgage lien, and have the mortgaged property sold for its
satisfaction.” (Citations omitted.) Id. at ¶ 22-24.
{¶ 12} The case before us involves the third remedy, which is a foreclosure action
asking that the property be sold. However, a “ ‘foreclosure proceeding is the
enforcement of a debt obligation,’ * * * and the debt is established by the note.” Id. at -6-
¶ 27, quoting Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d
396, ¶ 17. In Holden, the court concluded that a bank could proceed in foreclosure
against a debtor who had been discharged from any obligation on a promissory note in
bankruptcy proceedings, so long as the bank could prove that “it is the party entitled to
enforce the note—regardless of whether it can obtain a personal judgment on it against
the [obligors].” Holden at ¶ 27.
{¶ 13} “ ‘To properly support a motion for summary judgment in a foreclosure
action, a plaintiff must present evidentiary-quality materials 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.’ ” (Citations omitted.) JP Morgan Chase Bank, N.A. v.
Massey, 2d Dist. Montgomery No. 25459, 2013-Ohio-5620, ¶ 20.
{¶ 14} Anderson first takes issue with Nationstar’s proof that it is the current
mortgagee. According to Anderson, Nationstar failed to establish an unbroken chain of
title between it and the original mortgagee. Further, Anderson contends that this failure
means that Nationstar lacked standing to pursue the foreclosure action.
{¶ 15} A party commencing litigation must have standing to sue to invoke the
jurisdiction of the common pleas court. Fed. Home Loan Mtge. Corp. v. Schwartzwald,
134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 38. “To have standing, a
plaintiff must have a personal stake in the outcome of the controversy and have suffered
some concrete injury that is capable of resolution by the court.” (Citations omitted.) -7-
Bank of Am., N.A. v. Adams, 8th Dist. Cuyahoga No. 101056, 2015-Ohio-675, ¶ 7.
{¶ 16} Attached to Nationstar’s complaint and to its motion for summary judgment
are copies of the assignments of the November 24, 1999 mortgage. First, the mortgage
was assigned by Security National Mortgage Banc, LLC to Flagstar Bank, FSB, on
November 24, 1999. Then, Flagstar Bank, FSB assigned the mortgage to Fannie Mae,
or Federal National Mortgage Association, in care of Chase Mortgage Company, on July
26, 2000. Federal National Mortgage Association then assigned the mortgage to
JPMorgan Chase Bank, National Association on April 22, 2015. Next, JPMorgan Chase
Bank, National Association assigned the mortgage to Federal National Mortgage
Association on January 20, 2016. Finally, on February 4, 2020, Federal National
Mortgage Association, through Nationstar Mortgage, LLC, its attorney-in-fact, assigned
the mortgage to Nationstar Mortgage LLC D/B/A Mr. Cooper. All these assignments
were recorded in the Montgomery County Recorder’s Office.
{¶ 17} The February 4, 2020 mortgage assignment to Nationstar was recorded in
the Montgomery County Recorder's Office before this foreclosure case was filed.
Contrary to Anderson’s argument, the record establishes an unbroken chain of
assignments from the first mortgagee to Nationstar. Anderson attempts to raise doubt
regarding the chain of title by noting a difference in address in the Flagstar entity and
raising a question about whether the Chase Bank entities were the same across different
assignments. But the assignments in the record before us show an unbroken chain of
title from each assignment to the next. The very minor address differences noted by
Anderson were insufficient, by themselves, to create a genuine issue of material fact -8-
regarding standing, especially where Anderson did not present any evidence that any of
these entities were not what they appeared to be on the face of the recorded documents.
Further, we note that Anderson lacks standing to challenge the validity of the assignments
of the mortgage, because Anderson was not a party to the assignments. The Eighth
District has explained that the reason for this conclusion is that the assignments do not
alter the borrower's obligations under the note or mortgage. Bank of New York Mellon
Trust Co. v. Unger, 8th Dist. Cuyahoga No. 97315, 2012-Ohio-1950, ¶ 35. Accord Bank
of New York Mellon v. Clancy, 2d Dist. Montgomery No. 25823, 2014-Ohio-1975, ¶ 33.
{¶ 18} Nationstar contends that the fact it established that it was the mortgagee
was sufficient to confer standing, because “a plaintiff has standing to foreclose when it
establishes an interest in the note or mortgage at the time it commenced the lawsuit.”
Appellee’s Brief, p. 6. For this proposition, Nationstar cites to our previous decision in
Wells Fargo Bank, N.A. v. TIC Acropolis, LLC, 2d Dist. Greene Nos. 2015-CA-32, 2015-
CA-33, 2016-Ohio-142, and the Eighth District’s decision in CitiMortgage, Inc. v.
Patterson, 2012-Ohio-5894, 984 N.E.2d 392 (8th Dist.). While Nationstar’s citations are
accurate, these decisions were issued before the Ohio Supreme Court’s decision in
Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d 1243, at ¶ 21, which called into
question whether a mortgagee has standing to obtain a judgment in foreclosure without
also proving it is a party entitled to enforce the note. As the Holden Court explained:
But Schwartzwald did not define what documents are necessary to
establish standing. We stated, based on those facts, “[B]ecause [the bank]
failed to establish an interest in the note or mortgage at the time it filed suit, -9-
it had no standing to invoke the jurisdiction of the common pleas court.” Id.
at ¶ 28.
Parties and courts have seized upon that “failed to establish an
interest in the note or mortgage” statement in Schwartzwald as establishing
that a plaintiff in a foreclosure action must have an interest in either the note
or the mortgage at the time of filing in order to establish standing.
However, the “or” statement in Schwartzwald was a description of the
particular facts in that case rather than a statement about the requisites of
standing. The only issue before the court in that case was “whether a lack
of standing at the commencement of a foreclosure action filed in a common
pleas court may be cured by obtaining an assignment of a note and
mortgage sufficient to establish standing prior to the entry of judgment.” Id.
at ¶ 19. The bank had conceded that “there [was] no evidence that it had
suffered any injury at the time it commenced [the] foreclosure action,” id.
at ¶ 28; the bank had neither the note nor the mortgage at the time of filing,
so this court never considered whether possession of only one of the two
documents would be sufficient to confer standing on the bank.
Holden at ¶ 30-31. The Holden Court then concluded that “[t]o achieve judgment on its
foreclosure claim, Deutsche Bank needed to prove that it was the party entitled to enforce
the note.” (Emphasis sic.) Id. at ¶ 33.
{¶ 19} The Holden decision suggests that a party must establish an interest in both
the mortgage and the note to gain a judgment on a foreclosure claim. Therefore, we will -10-
address the issue of whether Nationstar was a party entitled to enforce the note.
{¶ 20} In the present case, there appears to be no dispute that the promissory note
was a negotiable instrument. Under R.C. 1303.31(A), the parties entitled to enforce a
negotiable instrument are: “(1) The holder of the instrument; (2) A nonholder in
possession of the instrument who has the rights of a holder; (3) A person not in
possession of the instrument who is entitled to enforce the instrument pursuant to section
1303.38 or division (D) of section 1303.58 of the Revised Code.” “Holder” is defined as
”(a) The person in possession of a negotiable instrument that is payable either to bearer
or to an identified person that is the person in possession; (b) The person in possession
of a negotiable tangible document of title if the goods are deliverable either to bearer or
to the order of the person in possession; or (c) The person in control of a negotiable
electronic document of title.” R.C. 1301.201(B)(21).
{¶ 21} In its motion for summary judgment, Nationstar stated, “In the present case,
Plaintiff was a person entitled to enforce the promissory note at the time the Complaint
was filed, and remains a person entitled to enforce the promissory note to date.”
Plaintiff’s Motion for Summary Judgment, p. 7, citing Affidavit in Support of Summary
Judgment, ¶ 8. Attached to the motion for summary judgment was the affidavit of Britney
Fisher, an employee of Nationstar with the title of Document Execution Associate. She
averred that “Attached hereto as Exhibit A is a true and accurate copy of the original
promissory note, which is part of the Mortgage Loan (‘the Note’).” Affidavit in Support of
Summary Judgment, ¶ 7. She also averred that “Nationstar Mortgage LLC, dba Mr.
Cooper was a person entitled to enforce the promissory note at the time the Complaint -11-
was filed, and remains a person entitled to enforce the promissory note to date.” Id. at
¶ 8.
{¶ 22} Fisher did not state in her affidavit the precise facts on which she relied in
making her averment that Nationstar was a party entitled to enforce the note. For
example, she did not aver that Nationstar was the holder of the note or that Nationstar
was a nonholder in possession of the instrument who had the rights of a holder. While
she averred that she attached a true and accurate copy of the original note to her affidavit,
it is unclear whether that meant she and Nationstar had possession of the original note
or just obtained a true and accurate “copy” of the note by other means. However,
Anderson failed to raise any objection to Fisher’s affidavit on this basis and did not
contend that Nationstar lacked standing due to a failure to prove it was a party entitled to
enforce the note. Further, he did not submit any evidence in opposition to the motion for
summary judgment that contradicted the averments made in Fisher’s affidavit. As a
result, we must conclude that Anderson waived any argument related to whether
Nationstar was a party entitled to enforce the note and did not satisfy his reciprocal
summary judgment burden of pointing to specific facts in the record demonstrating the
existence of a genuine issue of material fact for trial. Therefore, the trial court did not err
in finding that Nationstar had standing to bring this foreclosure action.
{¶ 23} Anderson also contends that Nationstar failed to prove the amount due on
the loan, because Nationstar failed to show all the payments made since the original date
of the loan. But courts have consistently held that “[t]here is no requirement that a
plaintiff provide a complete ‘payment history’ in order to establish its entitlement to -12-
summary judgment in a foreclosure action.” (Citations omitted.) Morequity, Inc. v.
Gombita, 2018-Ohio-4860, 125 N.E.3d 300, ¶ 44 (8th Dist.). Rather, “ ‘[a]n affidavit
stating that the plaintiff is the owner of the note and mortgage and that the loan is in
default generally is sufficient to permit a trial court to enter summary judgment and order
foreclosure, unless there is evidence that controverts the averments.’ ” Wells Fargo Fin.
Ohio 1, Inc. v. Robinson, 2d Dist. Champaign No. 2016-CA-23, 2017-Ohio-2888, ¶ 17,
quoting JP Morgan Chase Bank, N.A. v. Johnson, 2d Dist. Champaign No. 2014-CA-27,
2015-Ohio-1939, ¶ 10.
{¶ 24} Nationstar submitted an affidavit, along with a payment history, which
showed a balance due of $7,708.76 as of February 2018. The records going forward
showed the last payment of $512.31 was made on the loan on March 11, 2019. This
payment reduced the outstanding balance to $7,390.59, which was the amount of the
judgment awarded to Nationstar. This satisfied Nationstar’s summary judgment burden.
Anderson then had the burden of coming forward with evidence contesting the amount
due or the fact that he had defaulted on the mortgage. He did not do so. Therefore, the
trial court did not err in granting summary judgment to Nationstar.
{¶ 25} Finally, Anderson contends that Nationstar failed to include citations in its
motion for summary judgment to specific parts of the record. According to Anderson,
Nationstar failed to cite to the affidavit attached to its motion, failed to cite the documents
authenticated by the affidavit, and failed to show how these documents supported
Nationstar’s claim to summary judgment. Anderson argues that it is not the court’s job
to search Nationstar’s filing to “ferret out” the basis for its claim. Appellant’s Brief, p. 8. -13-
We do not agree with Anderson’s characterization of Nationstar’s motion for summary
judgment.
{¶ 26} Nationstar attached to its motion for summary judgment an affidavit from
one of its employees who had personal knowledge of and reviewed Nationstar’s business
records. Attached to her affidavit were the documents that demonstrated the unbroken
chain of title from the original mortgagee to Nationstar. Further, attached to her affidavit
was the payment history on the loan from February 2018 to September 2021. In total,
there were under 40 pages of documents attached to Nationstar’s motion for summary
judgment. While Nationstar could have done a better job of walking the trial court
through the various assignments and the payment history, we do not believe this was a
situation where the movant failed to meet its initial burden of showing an absence of a
genuine issue of material fact. Rather, Nationstar laid out its argument and attached
relevant, evidentiary support for its argument. Anderson then had the burden of pointing
to evidence of specific facts in the record demonstrating the existence of a genuine issue
of material fact for trial. Anderson did not meet his reciprocal burden. Therefore, the
trial court did not err in granting judgment to Nationstar.
{¶ 27} The sole assignment of error is overruled.
III. Conclusion
{¶ 28} Having overruled Anderson’s sole assignment of error, the judgment of the
trial court will be affirmed.
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WELBAUM, P.J. and EPLEY, J., concur.